RAJ FURNITURES Vs. COMMISSIONER OF SERVICE TAX

JUDGEMENT

(1.) LD . Counsel Shri S.K. Sarwal submits that nature of activity carried out by the Appellant is interior decoration on contract basis viz. wooden furniture, wooden partition, tiling, glazing, false ceiling, POP, some brick work, plastering, plumbing and similar other services in relation to building or civil structure. But Revenue, on examination of the work orders has depicted the activity in para 6 of order of adjudication stating that the appellant is providing various interior services such as wooden partition, plastering, painting, civil work, jointly items, floor and wall tiling and other similar services in respect of building or civil structure or part thereof. The contract executed by the appellant was item rate contract which includes the cost of interior also. Such a fact was also found by department examining detailed invoices raised by the appellant. According to department, the value of material used by the Appellant not being separately indicated on the invoices and service Tax was charged on the invoice value after availing abatement of 67%, the appellant is dis -entitled to the abatement of 67% under Notification No. 15/2004 -S.T., dated 10 -9 -04 as amended in terms of Notification No. 1/2006 -S.T., dated 1 -3 -2006. The appellant also was denied benefit of Notification No. 12/2003 -S.T., dated 20th June 2003.

(2.) LD . Counsel submits that under the provisions of Finance Act, 1994, the element of materials shall not be taxable. It is only the service if that falls under the defined category of taxable service under law, that shall be brought to the ambit of tax. He also draws our attention to pages 50 and 51 of the appeal folder stating that the appellant has paid Service Tax under the rate applicable to Commercial and Industrial Construction Service availing abatement of 67% on the gross value of the contract received. According to the appellant Rs. 2.67 crores have already been deposited. Therefore he prays that pending hearing of the appeal there should not be recovery of the demand raised by the order of adjudication. While praying as aforesaid, ld. counsel draws our attention to decision of the Tribunal in the case of Delux Colour Lab Pvt. Ltd. v. CCE reported in : 2009 (13) S.T.R. 605, to submit that goods used in work contract shall not be subject matter of tax under Finance Act, 1994.

(3.) WE have no dis -agreement that the Notification No. 12/2003 -S.T., dated 20 -6 -2003 does not intend to tax the goods which is not scope of Finance Act, 1994. But when the appellants takes shelter of Notification No. 18/2005 -S.T., dated 7 -6 -2005, the Appellant has to satisfy the condition and demonstrate to Revenue that the activity of completion and finishing is not deniable to the abatement of 67% contemplated by the notification. Prima facie, it appears that the appellant has not brought out its case distinctly to hold that the case of appellant does not fall under proviso to para 1 of Notification No. 18/2005 -S.T., dated 7 -6 -2005. Rather it portrays that the activity of completion and finishing does not involve materials. We noticed that although the nature of the activity of completion and finishing was claimed by the assessee as entitled to abatement, the assessee did not bring evidence to the satisfaction of law.