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TMI Blog2015 (6) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011 (22) STR 571 for the legal issue that "non-specification" of classification/category of services in the show cause notice and in the adjudication order would be fatal to the proceedings? iii) Whether the 1st respondent Tribunal is justified in ignoring the decision of the Hon'ble Madras High Court reported in 2011 (23) STR 7 (Mad), wherein it was held that Tax liability- Dept., exercising power under fiscal statute while passing order bringing someone under tax net, is required to render specific finding as to liability and demand cannot be on surmises and conjectures, especially when it was admitted that the demand was made without specifically proposing the classification of service?" 2. In view of the order, which this Court proposes to pass, it is not necessary to deal with the questions of law, as raised above. 3. The facts, in a nutshell, are as hereunder :- The appellants/assessees herein are contractors, who carried out various activities for the Neyveli Lignite Corporation (for short 'NLC'), a Government of India Undertaking. The respondent/Department found that the activities, undertaken by the assessees/appellants, come within the purview of service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been barred by limitation under Section 73 of Finance Act, 1994. In this context, the findings of the adjudicating authorities admitting to the department's knowledge as early as 2002 about the appellants' activities as per contracts with NLC are highlighted, as evident from identical findings of adjudicating authority in a number of impugned orders; (7) that the demands have been made without any verification, or inquiry or investigation as to the nature of works carried out by the appellants with reference to the various contracts signed with NLC. It is submitted that no statements were recorded from either the appellants or the authorities of NLC in this regard; (8) that the fact of payment of VAT by the appellants have also been ignored. Moreover, the individual turnover of each of the appellants have not been considered at all for allowing the value based service tax exemption available under Notification No.6/2005 ST. The specific exclusion of road laying, widening of roads from the scope of taxable service under "Commercial or Industrial Construction Service" were also not examined or considered; (9) that in view of the above, the confirmation of demand merely o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be taxable value - Assessable value doubted - No willingness on part of department to quantify extent of undervaluation or under-declaration - No verification report as desired by Tribunal produced - Revenue's appeal dismissed as unsubstantiated and not pursued diligently - Section 86 of Finance Act, 1994." (paras 8, 9, 10, 11, 12, 14). 6.3 The Hon'ble CESTAT, in the case of CCE, Raipur - Vs - Shyam Enterprises reported in 2011 (23) STR 29 (Tri. Del.) has held as follows :- "Demand - Show cause notice not providing foundation for levy - Manpower Recruitment and Supply services - Submission that erection and commissioning of tower parts done through engagement of employees/workers of company not amounts to providing manpower recruitment and supply service - SCN not making any head or tail of Revenue's case - Audit objections not bring out supply of manpower - SCN not providing foundation for levy in respect of activity carried out - Charge with a basis not noticed in SCN - Revenue's appeal dismissed - Section 73 of Finance Act, 1994." (para 3). 6.4Further the Hon'b;e Supreme Court in the case of CCE, Bangalore - Vs - Brindavan Beverages (P) Ltd. reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercising power under fiscal statute while passing order bringing someone under tax net, required to render specific finding as to liability - Demand cannot be on surmises and conjectures - Section 73 of finance Act, 1994." (Para 12). 8.0. I also find that all the SCNs are time barred inasmuch as the department had been aware that the appellants had been rendering services to M/s.NLC from the year 2002 onwards. This being so the appellants cannot be fastened with duty liability invoking proviso to Sec.73 as there was no intention on the part of the appellant to evade payment of service tax. There were also series of correspondences with NLC on the rendering of various services by the appellants. 8.1. In this connection it is pertinent to point out that the Apex Court in the case of Pushpam Pharmaceuticals Company - Vs - CCE, Bombay reported in 1995 (78) ELT 401 (SC) has held that "where facts are known to both the parties the omission by one to do what he might have done and not that he must have done does not render it suppression of fact". In view of the Apex Court's decision, since the facts was known to the Department, the extended time limit is not available to the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racting the portion of the order of the Commissioner (Appeals) was of the view that the Revenue discharged the burden by producing statements of NLC and that the assessees did not dispute it at any point of time and the entire demand was raised on the basis of the statement of NLC, which was not disputed by the assessees. However, the Tribunal felt that since the statements received from NLC by the Department were not provided to the assessees/appellants, they could not explain the amounts received with reference to the work discharged by them. Therefore, the matters were remitted back to the assessing officer to provide the statement, provided by NLC, to the assessees/appellants to enable them to defend the demand of tax and, thereafter, the adjudicating authority was directed to pass orders after giving opportunity of hearing to the assessees. Further, all the issues were also directed to be kept open for decision by the adjudicating authority. Aggrieved by the said order of the Tribunal, the appellants/assessees are before this Court by filing the present appeals. 9. Mr. Jayachandran, learned counsel appearing for the appellants/assessees contended that there was no prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services undertaken by them do not fall under taxable category, which has been pointed out by the Tribunal in para-5 (b) of its order, which, for better clarity, is extracted hereinbelow :- "a) Water supply-drainage for Government Hospital, Guest House in NLC. b) Drain cutting, dumping yard mines, earth excavation, forming bunds, laying of inner roads and maintenance of such roads; fixing safety grills to courtyard, school works, community halls. c) Earthwork, school building and painting of Government Hospital. d) Renovation & construction of toilets in MB & GH. e) Electrical works. f) Drip Irrigation systems. g) Making of gate arches, earth work excavation, control room, development of quarter - Guard. h) Improvement of electrical installations, cable cleaning of Kisok Motors, etc. i) Horticulture, lawn gardens, up-keeping watch & ward section office & Stores, ancillary mining activities, lawns & gardens. j) Pontoon shifting, pump laying, cleaning of drills. k) Loading, transporting scrap civil works in ash bund, lathe pump house, street lights, electrical work in canteen, removal of fly ash. l) Wiring in mine 1, 1 A entrance painting transformers, switch gears, ligh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This Court, therefore, is of the considered view that without going into these issues, mere remanding the matter back and asking the adjudicating authority to re-adjudicate the matter after giving break-up of the details to the assessees/appellants will not suffice. The issues raised by the appellants/assessees and answered by the Commissioner (Appeals) in their favour has to be considered by the Tribunal on its own merits and there being no finding on the issues in the manner in which the plea has been taken by the present appellants, who were successful before the Commissioner (Appeals), we find that the order of the Tribunal cannot be sustained on an issue of open remand. 17. The arguments of the learned standing counsel for the Department that all the issues can be trashed out before the adjudicating authority does not find favour with this Court as the Department cannot be allowed to fill up the lacunae in the show cause notices on the basis of an open remand as alleged by appellants. 18. Therefore, this Court is of the considered view that the matter has to be remitted back to the Tribunal to consider the facts, as narrated above, as has been presented by the Department a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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