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TMI Blog2016 (7) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 50 lakhs would meet the requirement of Section 35F of Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. - stay granted partly. - ST/53500/2014-CU[DB] - Stay Order No.50793/2016 - Dated:- 20-6-2016 - Mr. S.K. Mohanty, Member (Judicial) and Mr. R.K. Singh, Member (Technical) Mr. J.K. Mittal, Advocate-For Appellant Mr. Amresh Jain, DR-For Respondent ORDER Stay application has been filed against the Order-in-Original No.58-59/ST/SRB/2014, dated 26.03.2014 in terms of which service tax demands of ₹ 4,70,66,218/- in respect of Show Cause Notice dated 24.04.2012 and ₹ 2,29,16,563/- in respect of Show Cause Notice dated 19.12.2012 were confirmed along with interest and penalties. The b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le CENVAT credit of common input services on account that assessee is providing taxable and exempted services. 9,80,365.00 - 6. Interest under Section 75 of the Finance Act, 1994 on delayed payment of service tax for the period April, 2007 to March, 2008. 2,13,051.00 - Total 4,70,66,218.00 2,29,16,563.00 2. Ld. advocate for the appellant has contended as under:- (i) Construction of Women s hostel for and on behalf of Ministry of Woman and Child Development, Govt. of India and construction of Civil Services Officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices which were used in the so called exempted output services have been identified. (vi) There was no wilful mis-statement/suppression, which will substantially hit the demand as time-barred. 3. Ld. advocate for the appellant cited CBEC circular F.No.354/163/2014-TRU, dated 15.12.2015 in support of its contention regarding Manpower Recruitment or Supply Agency service and CESTAT judgement in the case of Anand Construction Co. Vs. CCE, Kolhapur [2013 (32) STR 451 (Tri.-Mum)] to assert that construction of women s hostel would not fell under CICS. He also referred to Supreme Court judgement in the case of CCE, Kerala Vs. Larsen Toubro Ltd. [2015 (39) STR 913 (SC)] to assert that the classification of services mentioned at Sl. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the classification should have been under Works Contract service, ld. Departmental Representative made an arguable case that the appellant did not supply any goods at all; goods were supplied by sub-contractors, and therefore the service rendered by the appellant did not fall under Works Contract service. 6. As regards demand under Manpower Recruitment or Supply Agency service, we find that the contract entered between the appellant and M/s. Ahluwalia Contractors India Ltd. inter alia stipulated that:- The NBCC shall provide skilled/semi-skilled workmen supervisors, masons, wiremen, plumber, etc. or any other category to assist the contractor in execution of the works at the fixed recovery rate of ₹ 18,500/- per month for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal and temporarily under the effective control of the service recipient. Thus, prima facie, the impugned demand under Manpower Recruitment or Supply Agency service (at Sl. No.2 of the table above) is sustainable in principle. However, the contention of ld. advocate for the appellant that in respect of second Show Cause Notice, the best judgement assessment has been done without any legal basis and at a level much higher than the level in the corresponding previous period will be kept in mind while determining the quantum of pre-deposit. 7. Regarding demand on maintenance and power backup expenses recovered from clients, the appellant has prima facie made out a good case that there was no service element in recovery of charges for pow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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