ALUMINIUM AND GLAZAING Vs. COMMISSIONER OF CENTRAL EXISE

JUDGEMENT

(1.) Heard Mr. Joseph Prabakar, learned Counsel for the Petitioner and Mr. Vikram Ramakrishnan, learned Central Government Standing Counsel appearing for the Respondents. The order passed by the First Respondent-Appellate Authority in order in A. No. 473/2012 (M-ST) in Pre-Deposit-cum-Appeal Order No. 43/2012 [(M-ST (PD)], dated 18.1.2013, whereby and whereunder, the authority has decided that for taking up the Appeal, the pre-condition for depositing the entire amount of Rs. 38,99,288/- towards Service Tax, with interest, penalty, etc., had been reduced to Rs. 19,50,000/- under Section 35-F of the Central Excise Act (hereinafter referred to as 'the Act') made applicable to the Service Tax as per Section 83 of the Finance Act and the balance amount was waived, is called in question, seeking to quash the same as arbitrary and illegal.

(2.) According to the Petitioner-Company, they are engaged in the business of structural glazing and registered with the Service Tax Department, vide Registration No. AEFPA-6746-LST-001 under the category of "commercial or industrial construction services and construction of residential complex services". The work carried out by the Petitioner-Company involves purchase and sale of materials like aluminium, glass, etc. and also rendering service. Accordingly, they have paid sales tax/VAT on the value of materials involved in the contract and they are also liable too pay Service Tax for the portion of the work involving services and they have paid Service Tax under 'erection, commissioning or installation' as per Section 65(39a) of the Finance Act, 1994 and availed abatement of 67% as per Notification No. 1/2006, dated 1.3.2006 and paid Service Tax on 33% of the total contract value.

(3.) While so, it is the case of the Petitioner that a Show Cause Notice in No. 317/2009, dated 19.8.2009 was issued to the Petitioner, denying the benefit of the said abatement of 67%. However, the Petitioner filed reply, dated 5.10.2009 and attended personal hearing and thereafter, the matter was adjudicated by the Second Respondent-Original Authority, who passed the order in Order-in-Original No. 19/2012, dated 28.3.2012, levying Service Tax of Rs. 38,99,288/-, with interest, penalty, etc., against which, the Petitioner filed Appeal before the First Respondent-Appellate Authority, which was numbered as A. No. 473/2012 (MST).