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TMI Blog2022 (9) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... e than its share of tortuous twists and turns including appellate intervention of the High Court on several occasions besides writ remedy having been sought during the stage of investigations against summons for contracts and other documents pertaining to execution of works for Delhi Jal Board [DJB] and Delhi Metro Rail Corporation [DMRC] which, surprisingly, continues to plague the proceedings before us even now after elapse of over a decade as a primary submission on the part of Learned Authorized Representative appearing for appellant-Commissioner. Recountal of the facts and circumstances is, thus, unavoidable and even at the cost of tedious elaboration. 2. The impugned order adjudicated notice dated 14th October 2011 for recovery of Rs. 14,05,90,649/- on the same services for 2010-2011 also. M/s LR Sharma & Co, a partnership firm and respondent in the appeal, had filed memorandum of cross-objections. Though the notices pertained to three 'taxable services' rendered by the respondent herein, appeal against order of the adjudicating authority is limited to taxability of receipts from Delhi Metro Rail Corporation (DMRC) on execution of contracts for laying of water pipelines and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1050 mm dia sewer line (Rising main) and laying of 1000 mm dia MS/DI pipe at Ghazipur crossing, National Highway No. 24, P/L/J 1000-800-700 mm dia DI peripheral water main along Sagarpur and Old Mehrauli Road for reservoir CT-1-Dwarka etc. The party has not submitted all the copies of the contracts except seven work orders submitted vide their letter dated 25.09.09, in spite of repeated reminders by this office....... xxxx 14. The party was requested vide this office letter dated 6.09.10 & subsequent reminder dated 21.09.10 to submit copies of the contracts and balance sheet for the year 2009-10 (Trial balance if the audited is not available) but the same was not submitted even in spite of reminding telephonically to the Chartered Accountant of the party.... During this visit they were requested to furnish the copies of contract is executed by them as well as the balance sheet for the year 2009-10 (Trial balance if the audited is not available) which they promise to submit on 5.10.10, but the same have not been submitted till 7.10.10 in spite of telephonic reminder to the CA. Therefore, service tax liability for the Financial Year 2009-10 shall be taken into account on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice Tax, as directed by the authority competent to review adjudication orders, along with application for condonation of delay which was responded to by the assessee in memorandum of cross-objections. The maintainability of the appeal was challenged in writ proceedings before the Hon'ble High Court of Delhi and, in order dated 2nd November 2012 of the High Court, liberty was granted to the assessee to plead so before the Tribunal. The grounds in the cross-objections on the scope of statutory review and application of mind thereto was found sufficient by the Tribunal, in final order no. 56165/2013 dated 26th April 2013, to dismiss the appeal even while noting that sufficient grounds existed for condonation of delay. 7. On successful challenge by Revenue in the High Court of Delhi which, by order dated 20th March 2014, reversed the finding on maintainability and directed restoration of appeal before the Tribunal, application for such restoration was moved and the Tribunal, vide miscellaneous order no. 54030/2014 dated 25th November 2014, dismissed the same as misconceived in view of the specific order of the High Court. Two applications - by the respondent-assessee challenging the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the relevant documents, including the contract in question, where already produced in the enquiry prior to the issuance of the show cause notice ('SCN') and was already available with the department. Mr Harpreet Singh, Learned Senior Standing Counsel appearing for the department, assures the Court that on the date that may be fixed by this Court for appearance of the parties before the CESTAT, the documents relied upon by the department will be produced before the CESTAT. It is pointed out by Mr Mittal that only such documents referred to in the SCN, ought to be permitted to be relied upon by the Department before the CESTAT. It will be open to the Appellant herein to make submissions in this regard before the CESTAT. 5. Since the enquiry in the matter started in 2007, we request the CESTAT to dispose of the appeal at the earliest convenience, and preferably within six months from the date fixed by this Court for listing of the appeal before it for directions. 6. The appeal of the department... will now be listed before the CESTAT for directions on 2ndDecember, 2019.' 10. At the hearing before the Tribunal on 10th February 2020, the matter was adjourned to 25th February 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he entry in section 65 (105) of Finance Act, 1994 and that the organizational objective of the recipient precludes the privilege accorded to Delhi Jal Board on exemption from taxability. 14. It may well be that the assessee had failed to produce the relevant contracts and that the adjudicating authority has, admittedly, not examined each of the contracts exhaustively. Nonetheless, from the absence of such documents for arriving at the proposal for recovery in the show cause notices, it is reasonable to conclude that the impugned order - the cause of action - did not find it necessary to ascertain the contents thereof and, indeed, has not dropped proceedings owing to lack of such. On the contrary, the recovery proposed in the show cause notice has not made any adverse inference from such lack but has taken recourse to 'best judgment' assessment permissible under section 72 of Finance Act, 1994 thereby obliterating the presence, and necessity, of those contracts insofar as the impugned proceedings are concerned. We also find that the designated 'relied upon documents' are nothing but correspondence with the assessee seeking documents that have not been specifically enumerated. We no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 187) ELT 433 (Guj)], of the Hon'ble High Court of Bombay in Stanlek Engineering Pvt. Ltd. versus Commissioner of Central Excise, Mumbai-II [2008 (229) ELT 61 (Bom)] and of the Tribunal in Hindustan Lever Ltd. versus Commissioner of Central Excise, Mumbai-I [2008 (10) STR 91 (Tri-LB)] to support his contention that the binding decision of the highest court must be applied even if brought to the notice of the Tribunal or adjudicating authority at any stage. 17. He argued that the distinction drawn by the Hon'ble Supreme Court in Commissioner of Central Excise, Kerala versus Larsen & Toubro Ltd. on the 'taxable services' existing prior to the incorporation of 'works contract service' encompassing those very services and to be applied only to services simpliciter erases the allegation of taxability as the charge of 'value-added tax' on the material supplied in accordance with the composite contract is not in dispute. Relying upon the decision of the Larger Bench of the Tribunal in Lanco Infratech Ltd. versus Commissioner of Central Excise & Service Tax, Hyderabad [2015 (28) STR 709 (Tri-LB)] holding that '18...... (q) We are thus left with the activity of construction of pipeline ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tro Rail Corporation cannot be distinguished from being called as railways merely on the ground that it involves a commercial angle. This decision has been followed by High Court as well in Delhi Metro Rail Corporation (DMRC) itself titled as Delhi Metro Rail Corporation (DMRC) versus Municipal Corporation of Delhi [2008 (103) DRJ 369]. High Court of Karnataka in Delhi Metro Rail Corporation (DMRC) versus Ministry of Finance [2013 (6) TMI 78] has also held that were contract services in respect of Railways are excluded under Clause 1 of 65 (105) zzzza of the Act i.e. such contracts will fall outside the definition of taxable service and consequently no tax shall be leviable under Section 66 of the Act on the value of such services. This Tribunal in M/s. IRCON International Ltd. versus C.S.T. Delhi [2017 (4) TMI 1086 (Tri-Del)] [IRCON is one of the company constituting the joint-venture i.e. the appellant] has held a composite work contracts irrespective include the category of service of erection, commissioning and installation irrespective that the said service is taxable since 1-7-2003 but since the services rendered is classified as works contract and the work contract in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material which could be the basis for directions to take additional evidence, we find that such directions in the impugned order have been made without reason. The adjudicating authority cannot be directed to fish out evidence. The Central Excise Intelligence and Investigation Manual require the SCN to be issued only after proper inquiry/investigation i.e., when the facts used are ascertained and allegations justified. The other particulars in the said Manual relied upon by the appellant also assume significance. The adjudicating authority is to adjudicate on the demand in the SCN based on the allegations made therein. There is no finding in the impugned order setting aside as erroneous a finding of the adjudicating authority, on the basis of materials that were there either before the adjudicating authority or before the Tribunal.' he contended that the plea of the Learned Authorized Representative is tantamount to that disapproved by the Hon'ble High Court of Calcutta. 18. He further contends that the facts relating to the dispute have been incorrectly adduced in the appeal in as much as the work undertaken is that of shifting of water pipelines to enable setting up of the rai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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