Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2019 (6) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (6) TMI 204 - CESTAT NEW DELHIDemand of service tax - Erection, Commissioning or Installation’ Service - Transport of Goods by Road’ Service - demand of interest and penalty as well - HELD THAT:- The Appellant had undertaken the activity under a composite and indivisible works contract and by no means can it be said that it was a contract for ‘Service’ simplicitor. In our opinion partial supply of material will not change the nature of the service provided by the appellant and it would still fall under the definition of “Works Contract Service”. The show cause notice was, however, issued to the Appellant alleging that the Appellant is providing ECIS. The position that comes out very clearly, therefore, is that even prior to 01 June, 2007 and post 01 June, 2007, the nature of service rendered by the Appellant was WCS and not ECIS. The show cause notice alleged that the Appellant was providing ECIS and the demand has also been confirmed under this category by the adjudicating authority. The impugned order, therefore, deserves to be set aside for this reason alone since the demand made under a particular category of service found to be incorrect in a subsequent proceeding, cannot be sustained. The issue that needs to be examined now is that though the Adjudicating Authority was not justified in confirming the demand under ECIS, but the appellant had admittedly collected Service Tax. The appellant is also not contesting that it is not required to deposit the Service Tax collected with the Department but what is sought to be contented is that the appellant had in addition to the amount that has been appropriated in the impugned order, deposited an amount of ₹ 16,614,934/- with the Department, (details of which have been mentioned at page 262 of the appeal memo.), which amount has not been considered by the Adjudicating Authority and, therefore, not appropriated. The confirmation of demand under heading ECIS with interest and penalty is set aside - The demand made under “Goods and Transport Agency Service” is maintained. So far as the appropriation of the amount is concerned, the matter is remanded to the Adjudicating Authority for passing a afresh order. Appeal allowed in part.
|