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TMI Blog2019 (11) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... his Raipur address, as admitted by him in this regard - After having submitted to the jurisdiction of the Commissioner / Adjudicating Authority without any protest, it is not correct or proper for the Appellant to take a 'U-turn', when the decision has gone against him. It is settled law that the power conferred upon the competent authority with reference to 'territorial jurisdiction' is not an instance of total lack of jurisdiction, so as to make the order null and void. Manufacture taking place or not - HELD THAT:- Obviously, it is an inclusive definition and not exclusive one. Admittedly, the activity being pursued by the Appellant in the premises of M/s. L T involving fabrication, commissioning and erection is by making use of the raw materials supplied by the service recipient / M/s. L T. There is no case for the Appellant that the Appellant was owner of the raw materials, which were put into the alleged manufacturing activity, to give rise the products. There is no instance of any sale and the products cannot be called as goods, having no independent marketability, as tailor-made, subject to the specifications given by the M/s. L T / service recipient - It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Finance Act, 1994). The learned counsel submits that the above penalty provisions are not attracted and the Appellant might be considered for the benefit of Section 80 of the Finance Act, 1994. Though the said provision came to be deleted with effect from 14.05.2015, insofar as the Appellant is concerned, the said provision was governing the field for the period from 01.10.2006 to 15.12.2011 involved herein. The course and conduct pursued by the Appellant is not liable to be branded as innocent or bona fide, insofar as the necessity to have taken registration was well known to the Appellant, who, in fact, had taken registration in respect of the sister concern belonging to the very same Appellant as Proprietor, which was being run under the name and style as M/s. M.R. Engineering Works, providing necessary services to the very same service recipient / M/s. L T. There is no substantial question of law - appeal dismissed. - Tax Case No. 2 of 2019 (Arising out of order dated 28.06.2018 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi in Appeal No.ST/57327/2013-CU(DB) - - - Dated:- 25-9-2019 - Shri P. R. Ramachandra Menon, Chief Justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f labour for various activities at the site. It is stated that the raw materials for fabrication of the structures are provided by M/s. L T and the Appellant's fabrication and erection work as mentioned above consisted of providing common beams, crane girder, roof, truss purlins etc. which involves making and cutting, fit up, welding as per drawing, specification and structure specified by the Awarder i.e. M/s. L T. (b) The Intelligence Wing of the Central Excise gathered information that the Appellant was providing services as aforesaid without even getting registered with the Service Tax Department and paying any service tax on the taxable services provided by it, particularly, for the period from 01.10.2006 to 15.12.2011. It was accordingly, that a summons was issued to the Appellant in terms of Section 14 of the Act on 27.01.2012, asking the proprietor of the concern to appear on 17.02.2012. On the said date, statement of the Appellant was recorded, a copy of which has been produced as Annexure-A/2. Subsequently, statement of the service recipient (M/s. L T) was recorded by the authorities of the Excise Department, a copy of which has been produced as Annex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal as per Annexure-A/9 order dated 02.01.2015. (d) The Appellant sought to challenge Annexure-A/9 by filing Tax Case No. 34 of 2015 before this Court. It was noted by this Court that the appeal was belated and that the delay was not liable to be condoned. It was accordingly, that interference was declined, the delay petition was dismissed and as a natural consequence, the appeal as well. This was taken up before the Apex Court by filing Special Leave Petition (Civil) No.32961/2015, wherein Annexure-A/11 order was passed by the Apex Court on 04.01.2016. It was brought to the notice of the Apex Court that the Appellant, in the meanwhile, had effected the deposit of ₹ 4.68 crores. The Apex Court directed to satisfy a further sum of ₹ 50 lacs in addition to the sum of ₹ 4.68 crores by the end of February, 2016, making it clear that, on satisfaction of the amount as above, the appeal rejected by the Tribunal would stand restored so as to cause the merit to be considered. Subsequently, an application was moved before the Apex Court for modification of the above order, which was considered and finalized as per order dated 17.03.2016, whereby time to eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad already satisfied the service tax and as such no loss has been caused to the State, which hence cannot be recovered from the Appellant again as it will amount to double taxation; and lastly , that the proceedings initiated and finalized by the Adjudicating Authority are hit by the law of limitation. 5. The learned Standing Counsel appearing for the Respondent submits that none of the above contentions is liable to be sustained as devoid of any merit and these aspects have been discussed in detail by the Tribunal, giving proper reasoning for the finding arrived at. Reference is made to the relevant provisions under the Statute so as to sustain the order passed by the Adjudicating Authority and the Tribunal. 6. With regard to the first point , the learned counsel for the Appellant submits that the relevant Notification regarding the jurisdiction of the Commissioner clearly denotes at Sl. No. 73 that, it provides power to the Commissioner of Excise, Raipur (Adjudicating Authority herein), to have the territorial jurisdiction in the State of Chhattisgarh alone. A specific ground has been raised as ground 'C' in the appeal in this regard. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make the order null and void. In the said circumstance, the contention now putforth by the Appellant, as raised in ground 'C' of the appeal is without any pith or substance. It is repelled accordingly. 7. With regard to the second point , as to the alleged manufacturing activity being done by the Appellant, it is true that Section 2(f) of the Act defines the term 'Manufacture' in the following lines : Section 2(f) : manufacture includes any process - (i) incidental or ancillary to the completion of a manufactured product; (ii) which is specified in relation to any goods in the section or Chapter notes of The Fourth Schedule as amounting to manufacture; or (iii) which in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sail price on it or adoption of any other treatment on the goods to render the product marketable to the consumer; and the work manufacture shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax was not paid by you in respect of M/s Pawan Engineering Works, Raipur even though you are providing identical services that too to a single service receiver. Ans : M/s. Pawan Engineering Works, Raipur was engaged by M/s L T for some Erection and Fabrication works being conducted in the sites of Wheel Casting Plant, Chhapra under Railway Ministry and at Dhamara Port, Odisha, We were advised by our service receiver that we need not to pay any service tax since the said services provided by us were exempted from service tax. In this regard the document in respect of the services provided at Railways and Port will be submitted at the earliest. Shri Ashim Dey (Manager Indirect Taxes, Kolkata Region, M/s. Larsen Toubro Ltd., Kolkata) [service recipient] : Q.No. 11 : In reply to Q. No.4, Shri S. Soman, Partner M/s. S.R. Brothers stated that We are entirely guided by M/s. L T. It is M/s. L T who prepares the bill except if few cases where L T demanded separate bill from us we have raised the same. Where M/s. L T prepare Running bill with service tax mentioned therein, we receive the service tax and pay the same whereas in ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfying the service tax, despite the liability to satisfy the same, merely on the basis of instructions / advice stated as given by the service recipient / M/s. L T can never be accepted as any explanation, much less, anything reasonable or satisfactory. Ignorance of law is no excuse. This being the position, the said ground also does not hold any water at all. 9. Coming to the next point that the proceedings were barred by limitation, the learned counsel makes a reference to Section 73 of the Finance Act, 1994, as it existed prior to the amendment brought about with effect from 28.05.2012 (as the relevant period insofar as the Appellant is concerned, is from 01.10.2006 to 15.12.2011). The recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded is dealt with under Section 73 of the Finance Act, 1994 and the time stipulated is 'one year'. However, under the 'proviso' to Section 73, extended time is provided in respect of the specific instances under a, b, c, d e. The provision reads as follows : 73. (1) xxx xxx xxx Provided that where any service tax has not been levi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant from satisfying penalty (which otherwise is payable under Sections 76 or 78 of the Finance Act, 1994). The learned counsel submits that the above penalty provisions are not attracted and the Appellant might be considered for the benefit of Section 80 of the Finance Act, 1994. Though the said provision came to be deleted with effect from 14.05.2015, insofar as the Appellant is concerned, the said provision was governing the field for the period from 01.10.2006 to 15.12.2011 involved herein. 12. After hearing both the sides, we are of the view that the course and conduct pursued by the Appellant is not liable to be branded as innocent or bona fide, insofar as the necessity to have taken registration was well known to the Appellant, who, in fact, had taken registration in respect of the sister concern belonging to the very same Appellant as Proprietor, which was being run under the name and style as M/s. M.R. Engineering Works, providing necessary services to the very same service recipient / M/s. L T. 13. In the above circumstances, we do not find any tenable ground to interdict Annexure-A/1 verdict passed by the Tribunal. There is no su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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