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TMI Blog2018 (7) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... se the service provider has opted for centralized bill/ accounting system than any Commissionerate where he works or situates, as the case may be, shall have the competent jurisdiction. But if the service provider is regionally registered, the Commissionerate under whose jurisdiction, he is registered, shall have the competent jurisdiction. In the present case, admittedly, the appellant was neither registered centrally nor regionally - The simultaneous facts also remains is that appellant is not the Site Manager but the service provider only and is based at Raipur with no registration under Service Tax. Thus, we find nothing to conclude that Commissioner, Raipur had no jurisdiction. Whether the activity done by the appellant was not of erection and commissioning / installation? - Held that:- Admittedly, the appellant had no ownership to the raw-material for the fabrication of stool. Also that stool apparently and admittedly was for enabling mono-rail beam fabrication and thus, was to be fastened to a structure already embedded into the earth. Seen from any of these angles, the stool in the present case falls out of the definition of goods and for the said reason, out of the defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of services like erection, commissioning and installation to M/s.Larsen Toubro (L T) who are registered with the appropriate Service Tax Authorities. However the intelligence was gathered that the appellants have not got themselves registered, despite they were providing the taxable services. Resultantly, summons were issued to the principal Larsen Toubra Ltd. appellant and the appellant s contractor by the Preventive Office of Central Excise on 13.12.2011 and 27.01.2012 respectively. In furtherance of the statements recorded since L T has shared the responsibility of the appellant, as far as the payment of Service Tax is concerned, show cause notice dated 17th April 2012 was served upon both of them. The same was adjudicated vide the order under challenge. 3. We have heard ld. Counsel for the appellant and ld. DR for the Revenue. 4. The appellant s arguments were 4 folds:- 4.1 At the outset he has objected the jurisdiction of Commissioner, Raipur, while issuing the impugned show cause notice, as the work in question was executed in the State of Orissa, Bihar and West Bengal i.e. outside the geographical limits of Raipur jurisdiction. In this connection he rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) ELT 177 (SC) 2. CCE v. Damnet Chemicals Pvt. Ltd. 2007 (216) ELT 3 (SC) 3. Pushpam Pharmaceuticals Company v.CCE-1995 (78) ELT 401 (SC) 4. Vineet Electircal Industries Pvt. Ltd. v. CCE 2001 (136) ELT 784 (Tri. Kol.) 5. CCE vs. Raptakos Brett Co.- 2006 (194) ELT 101 (Tri.-Mum.) 5. While rebutting these arguments, it is impressed upon that the appellant is admittedly providing the taxable services but still admittedly is not registered either under Central Registration or the Local Registration for the purpose. It is also an admission that the Head Office of the appellant is situated in Raipur, as a result, Commissionerate, Raipur was very well competent to issue a show cause notice to the appellant. M/s. S.R. Brothers vs. CCE, Raipur. has been relied upon. The services provided by the appellant is impressed upon as simplicitor service of erection, commissioning and installation, which is very much taxable under sub-clause (zzd) of Section 65 (105) read with Section 65 in (39A) of the Finance Act. The fabrication of stool as is impressed upon by the appellant will not classify the appellants activity as manufacture for the sole reason that the raw-ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s executed at the places in State of Orissa, Bihar and West Bengal. It is the settled law that every person providing all these specified taxable services is required to pay Service Tax. Service Tax being an indirect tax, its burden is to be borne by the person, who received these services but it is to be collected and paid to the Government Exchequer by the service provider. The gross amount charged by the service provider shall be the value of taxable service for the purpose of computation of service tax. It is also settled that Service Tax is a destination based tax. It is settled that in case the service provider has opted for centralized bill/ accounting system than any Commissionerate where he works or situates, as the case may be, shall have the competent jurisdiction. But if the service provider is regionally registered, the Commissionerate under whose jurisdiction, he is registered, shall have the competent jurisdiction. In the present case, admittedly, the appellant was neither registered centrally nor regionally. The mute question to decide about the jurisdiction is as to whether the place where head office of the non-registered service provider providing taxable service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1994 defines the term erection, commissioning or installation. Perusal thereof shows that it includes the pre-fabricated or otherwise structures. The appellant has impressed upon the activity done by him not to fall under Section 65 (39A), but to be a manufacture accordingly, to be out of the ambit of Service Tax. To adjudicate upon the argument it is necessary to know as to what the manufacture is. In accordance of Section 2(f) of the Central Excise Act, for an activity to be called as that of manufacturing, it is necessary that a new article should come into existence, as a result of the said activity. The Hon ble Supreme Court in Hokins Cooker 1997 (96) ELT 507 (SC) has held that an article even if marketable or deemed marketable would not yet be excisable under Section 3 (1) (a) of the Act without passing the premandatory test of manufacture. The definition also clarified that for an activity to be called as manufacture it must satisfy two basic conditions: (1) Article should be goods. (2) It is marketable. Section 2 (d) of Finance Act, 2008 defined goods as including any article/material or substitutes, which is capable of being bought and sold for considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharged the said liability. On the another point of time it is argued that the activity is not a service, but a manufacture. The said conduct of appellant when read with already observed malafide on part of proprietor of appellant about the registration of one of his firm but not of the other, despite both of them being the providers of taxable services that too to the sole recipient i.e. M/s. Larsen Toubro Ltd., amounts to suppression with the sole object of tax evasion. 14. Now coming to the next line of argument that M/s. Larsen Toubro has discharged the tax liability on the overall project, it is observed and Though the ld. Counsel for appellant has impressed upon the statement of its Proprietor Shri Ambika Prasad Shukla as was recorded on 17.02.2012 deposing that the appellants were advised by M/s. Larsen Toubro, only to not to obtain any Service Tax registration in respect of M/s. Pavan Engineering works, Raipur on the plea that they are paying Service Tax on the same and has also impressed upon the admission of Mr. Manab Basak the Assistant Manager of Larsen Toubro who vide his statement dated 17th January, 2012 has admitted about discharging the tax liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of imagination, it can be presumed that the proprietor was not aware of the services being rendered by the appellant to be the taxable services. Non-registration of the appellant, in the given circumstances, definitely amounts to suppression of relevant fact, which came to the notice of the Department lately only on the basis of some intelligence gathered by the Preventive Officers of Central Excise. It is also an apparent fact on record that the conduct of appellant had been only uncorroborative who even failed to furnish the relevant information and the transactional documents on the basis of which authority would have been able to proceed to a detailed and critical assessment of liability he had failed to provide even the work orders. The said suppression with such unresponsive obstructive and uncorroborative attitude of the appellant are sufficient for the Department to invoke the extended period for 5 years for issuing the show cause notice. 18. In view of entire above discussion, the authorities relied upon by the appellant are held not applicable to the peculiar facts and circumstances of the present case. We find no infirmity with the order under challenge. The same i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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