COMMISSIONER OF CENTRAL EXCISE Vs. PRASAD AND COMPANY

JUDGEMENT

(1.) THIS appeal is filed by Revenue against Order -in -Original No. RPR/59/2008, dated 30 -7 -2008 passed by the Commissioner Central Excise, Raipur. Brief facts of the case are that M/s. Prasad & Company (Project Works) Ltd. (hereinafter referred to as respondents) are engaged in providing services of construction of Industrial Buildings, Structures and Civil Work. Chhattisgarh State Electricity Board (CSEB in short) undertook expansion of Korba (East) Thermal Power Project for which Bharat Heavy Electrical Ltd. (BHEL) and National Building Construction Co. (NBCC) were awarded the contract for construction activity. BHEL and NBCC in turn engaged the respondents for construction work. Respondents are registered with Service Tax Department in Hyderabad but did not take registration for their Korba activity. Investigations were taken up by Directorate General of Central Excise Intelligence (DGCEI) against the respondents for non -payment of Service Tax and respondents got themselves registered with Korba Range on 12 -10 -2006. Show Cause Notice dated 16 -7 -2007 was issued to the respondents demanding Service Tax with interest on services rendered by them as sub -contractors to M/s. BHEL and M/s. NBCC (after inclusion of cost of structural steel -supplied free by NBCC) and also proposing penalties on them. It was also proposed in the Show Cause Notice to reverse the Cenvat credit availed on the strength of invoices which were in the name of other sub -contractors of NBCC. After due process of law, the Commissioner vide his impugned Order -in -Original No. 59/2008, dated 30 -7 -2008 held that:

(2.) REVENUE has challenged the impugned order on the following grounds:

(3.) LD . Advocate appearing for respondents submits that Notification 15/2004 was rescinded on 28 -2 -2006 therefore there is no question of availment of benefit of this notification after 1 -3 -2006. Though new Notification 1/2006, dated 1 -3 -2006 was issued for abatement, but it denied the Cenvat credit in respect of input, capital goods and input services in contrast to denial of credit in respect of inputs and capital goods under Notification 15/2004. In respect of refund he submits that Commissioner has held that amount is refundable but doctrine of unjust enrichment is applicable to this refund as per law. He submits penalty has not rightly been imposed by the Commissioner.