Partly allowed

Ahluwalia Construction Group v. Commissioner 0F Service Tax, Delhi-I

Delhi HC1 Apr 2016SERTA/9/2016

Case brief

AI extract

What is this about?

The Delhi High Court set aside impugned orders by CESTAT requiring a pre-deposit of Rs. 1.8 crores. The Court held that the Tribunal failed to consider jurisdictional contentions regarding the classification of the service tax demand and a Supreme Court judgment on regional value adjustments, and thus revived the appellant's stay application.

What did the court decide?

Set aside impugned orders of CESTAT and revive the stay application for a fresh decision in accordance with law.

Ahluwalia Construction Group Vs Commissioner 0F Service Tax… — Cheque Dishonour | Delhi HC (2016)

¶1

¶2

IN THE HIGH COURT OF DELHI AT NEW DELHI 20. + SERTA 9/2016 AHLUWALIA CONSTRUCTION GROUP ..... Appellant Through: Mr C. Hari Shankar, Senior Advocate with Mr S. Sunil, Advocates.

¶3

versus COMMISSIONER 0F SERVICE TAX, DELHI-I ..... Respondent Through: Mr Satish Kumar, Senior Standing counsel. CORAM: JUSTICE S.MURALIDHAR JUSTICE R. K. GAUBA O R D E R % 01.04.2016

¶4

CM No.11997/2016

¶5

For the reasons stated in the application, the delay in filing the appeal is condoned.

¶6

The application stands disposed of.

¶7

SERTA 9/2016 & CM No.11996/2016

¶8

This is an appeal filed by the Appellant against order No. SO/52657/2015 dated 28^th July, 2015 and Misc. Order No M0/50076/2016-CU (DB) dated 9^th February 2016 passed by the Customs, Excise & Service Tax Appellate Tribunal (‘CESTAT’) requiring the Appellant to deposit Rs.1.8 crores as pre-deposit along with proportioned interest failing which the appeal would be dismissed for failure of pre-deposit.

¶9

SERTA 9/2016 Page 1 of 3

¶10

At the outset, it is pointed out by Mr C. Hari Shankar, learned Senior Counsel appearing for the Appellant that in the impugned order dated 28^th July 2015 the CESTAT has set out only three contentions of the Appellant. The CESTAT has, however, not noted that inasmuch as the service tax demand is for a period subsequent to 2007, the demand under the head ‘construction service’ was in contravention of the circular dated 24^th August, 2010 issued by the Central Board of Excise and Customs clarifying that the activity had to be treated as a works contract. It is pointed out that the above jurisdictional issue of the exigibility of the works contract executed by the Petitioner to service tax by wrongly classifying it as ‘construction service’, despite having been specifically urged by the Appellant before it, has not been taken note of by the CESTAT. It is pointed out that a further contention raised, but not considered by the CESTAT, is that in light of the judgment of the Supreme Court in the Commissioner of Central Excise & Customs, Kerala v. Larsen & Tourbo Ltd. 2015 (2) SCC 461 a distinction had to be drawn between the value of goods supplied as part of the works contract and the value of the services rendered for the purposes of service tax.

¶11

The Court notices that in a similar appeal before this Court by a sister concern of the Appellant, this Court by an order dated 12^th October, 2015 in Service Tax Appeal No.1/2015 ( Ahlcons India Pvt Ltd v. Commissioner of Service Tax ) noted a similar contention of the Appellant and remanded the matter to the CESTAT for consideration of the Appellant’s application for waiver of the pre-deposit afresh in accordance with law.

¶12

In view of the fact that the above contentions have not been considered by

¶13

SERTA 9/2016 Page 2 of 3

¶14

the CESTAT when it passed the impugned order, the Court sets aside the impugned orders dated 28^th July 2015 and 9^th February 2016 and revives the stay application filed by the Appellant before the CESTAT for a fresh decision in accordance with law.

¶15

The appeal as well as the pending application are disposed of in the above terms.

¶16

S. MURALIDHAR, J

¶17

R. K. GAUBA, J

¶18

APRIL 01, 2016 MK

Ahluwalia Construction Group v. Commissioner 0F Service Tax, Delhi-I

Case brief

What is this about?

What did the court decide?

Ahluwalia Construction Group v. Commissioner 0F Service Tax, Delhi-I

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Unipro Marketing Pvt.Ltd. Vs Commissioner of Service Tax,Delhi

Ahluwalia Construction Group Vs Commissioner of Service Tax, Delhi-I

National Building Construction Corporation Limited Vs Commissioner, Service Tax Commissionerate, New Delhi

Ahluwalia Construction Group Vs Commissioner of Service Tax, Delhi-I

S & S Technocrats Pvt. Ltd. Vs Commissioner of Service Tax, New Delhi-I

Farhat Construction Vs Commissioner, Bhillai

National Buildings Construction Corporation Limited Vs C.S.T. Delhi

Emaar Mgf Construction Pvt.Ltd. Vs Commissioner,Service Tax Commissionerate,Delhi

Devender & Anr. Vs State of Delhi

Sarvesh Kumar Vs State

Director General Esi Corporation & Anr. Vs Vinesh D. Meshram & Ors.

Pr. Commissioner of Income Tax -DELHI-8 Vs Shri Santosh Kumar Garg

Pr. Commissioner of I. TAX-2 Vs M/S. Bharti Airtel Ltd. (Erstwhile Bharti Televentures Ltd.

Daya Enterprises Vs the Commissioner of Customs (Export)