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TMI Blog2025 (4) TMI 1291X X X X Extracts X X X X X X X X Extracts X X X X ..... lation, supply, testing and commissioning of equipments. (ii) In pursuance to investigations, the following Show Cause Notices were issued to the Appellant:- a. SCN dated 11.08.2010 for the period October, 2004 to September, 2009; b. SCN dated 11.10.2012 for the period 2011-12; c. SCN dated 20.05.2014 for the period April 2012 to June, 2012; d. SCN dated 31.03.2015 for the period 2013-14. (iii) Vide the OIO dated 28.03.2018, ex parte order was passed against the Appellant, confirming the demand of Service Tax along with interest and penalties (iv) On appeal filed by the appellant, the Appellate Authority, vide the impugned order dated 31.12.2018 upheld the OIO. 3. The learned counsel submitted that the impugned order passed on 31.12.2018, was dispatched on 17.01.2019, under dispatch no. ED307574885IN and was received on 18.01.2019. Feeling aggrieved by the said impugned OIA dated 31.12.2018, the Appellant has filed the present appeal before this CESTAT. 4. Learned counsel stated that the classification of the services provided by the appellant is works contract services and not erection, commissioning and installation services. He contended that the appellant were exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 to 30.06.2012 the Appellant was providing Works Contracts Services and the Adjudicating Authority has calculated the demand of Service Tax on the abated value for the period 01.04.2005 to 23.09.2009, implying thereby that the services rendered by the Appellant was Works Contracts Services. However, despite this being the case, the demand was confirmed under wrong classification of "Erection, Commissioning or Installation Services" instead of under taxable category of Works Contract Services. 9. Learned counsel contended that as the demand in the case pertains to period before 01.07.2012, hence, it was mandatory to invoke and uphold correct classification of taxable services as per taxable services defined under Section 65 (105) of the Act ibid, which has not been done in the instant case. Hence, the classification and the demand thereof, both are not sustainable for the period prior to 01.07.2012. 10. As regards the demand for the period 01.07.2012 to 2013-14 learned counsel stated that the services have been classified under Erection, Commissioning or Installation Services only and not under Works Contracts Services, and therefore, the classification is again improper and inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Balance Sheet for the Financial Year was Rs. 1,99,60,938/-, whereas, the value which has been considered is Rs. 2,57,15,984/-. Hence, there is an excess value of Rs. 57,55,046/- is used for calculating the tax liability of the Appellant for the year 2009-10. 14. Similarly, the value of Gross Contract Receipts in Balance Sheet for the Financial Year was Rs. 2,21,46,680/-, whereas, the value considered is Rs. 3,71,59,266/-. Thus, there is an excess value of Rs. 1,50,12,586/- used for calculating the tax liability for 2010-11. 15. Learned Counsel stated that best judgment method has been used to calculate the taxable value for the financial year 2011-12 has been done taking the average of last five years (i.e 2006-07 to 2010-11) and loading it by 100% notional growth, whereas the actual value for the Financial Year 2011-12 was Rs. 1,80,60,002/-. Further, the amount of Rs. 4,89,76,377/- used for calculating Service Tax liability without providing any abatement on the said amount. Similarly, the taxable value of Rs. 2,27,82,442/- for the Financial Year 2013-14 has been computed by loading 100% notional growth of turnover for the financial year 2012-13 i.e. Rs. 1,13,91,221/-, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth at the original stage or at the appellate stage. Hence, the department had no choice but to resort to best judgment method under section 72. 20. Learned authorized representative also contended that the appellant suppressed details of its activities and payments received by them from the department even though they were registered. 21. We have heard the learned counsel for the appellant and the learned authorized representative for the department and perused the case records. 22. At the outset, we note that the order-in-original has noted as follows: "38. Personal Hearing Following the principle of natural justice, Personal hearing was given to the assessee on 04.10.2017 at 11:00 AM vide this office letter of C.No. (16)15-CGST/Adj/DN/367-368/MES/2017/ MES/1104 dated 19.09.2017, which was not attended by the assessee. Subsequently, second and third personal hearings were given to the assessee on 17.10.2017 and 19.12.2017 by this office letters of even numbers of 1228 and 334 dated 09.10.2017 and 04.12.2017 respectively. However, assessee did not appear in these personal hearings and few of the letters returned undelivered stating that no such company exists on the given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in absence of any records to substantiate claim of appellants. The Appellants have even now at the appellate stage not submitted all the records of the services rendered by it. 13. The appellants have also contended that they had executed composite works contracts and hence were eligible for abatement and duty cum tax duty benefit. In this regard, no copy of the agreement has been provided by the appellants to substantiate their claim. Further, from the contents of the appeals, it is seen that the services provided by the appellants were more of completion and finishing services which were not covered under the said notification for abatement purpose." 24. It is seen that the appellant has not submitted any documents/ records to substantiate their claims before the original adjudicating authority or the Commissioner (Appeals). In fact, we note that one of the grounds of appeal is that the principles of natural justice was not followed either by the adjudicating authority or the appellate authority. Further, the appellant has disputed the computation of service tax liability for the Financial Years 2009-10, 2010-11, 2011-12 and 2013-14. Copies of the Balance Sheets, Challans evi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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