TMI Blog2014 (5) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... e sufficiency of it has to be examined. If the appellant is able to show from the documents i.e. contract read with other documents including its R.A. Bills (Running Account Bills) and returns filed with the Sales Tax Authorities, the value of goods sold and supplied to the satisfaction of the authorities, it would be complying with the condition provided in Notification No. 12/2003-S.T., dated 20 June, 2003. We are normally loath to interfere with the discretion exercised by the Tribunal in passing orders, directing pre-deposit for the purposes of entertaining the appeal on merits. However, in this case, the Tribunal has committed a fundamental error in insisting only upon production of Invoices, as evidence of goods being sold and ignorin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of power station. The contract entered into by the appellant with its customers is a composite contract including supply of goods and rendering of services. 3. On 18 October, 2010, a show cause notice was issued to the appellant, calling upon it to show cause to the Commissioner of Central Excise as to why Service Tax amounting to Rs. 6.35 Crores on account of short payment of Service Tax for the period 2005-06 to 2009-10 should not be recovered. The extended period was invoked alleging that there was suppression of facts on the part of the appellant with intent to evade payment of Service Tax. The appellant responded to the notice pointing out that the extended period is not invocable as all facts were within the knowledge of the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d period of limitation as the respondent/revenue was aware of all the facts. Thus there appeared to be a complete justification to dispense with the demand attributable to the period 2005-06 to 2008-09. So far the normal period was concerned, the demand attributable to it was Rs. 2.54 Crores. The Tribunal held that the appellant s claim to the benefit of Notification No. 12/2003-S.T., dated 20 June, 2003 is not available, as the appellant s have not produced any documentary proof regarding sale of the goods and materials. The impugned order held that In the present case, even before us, the appellant has not produced evidence by way of invoices under which the goods were sold to the service recipient. Therefore, the appellant was directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed any documentary evidence, indicating the value of goods supplied in the execution of contracts for erection and installation of power station. In that view of the matter, as no evidence was produced by the appellant, they are not entitled to the benefit of Notification No. 12/2003-S.T., dated 20 June, 2003. Moreover, it is submitted that the Chartered Accountant s Certificate cannot be a substitute to prove the value of goods supplied for the purpose of appellant satisfying the condition of Notification No. 12/2003-S.T., dated 20 June, 2003. Mr. Jetly, therefore, submits that no interference is called for as out of total demand including duty and penalty aggregating to Rs. 12.70 Crores, the appellant has been directed only to deposit Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , directing pre-deposit for the purposes of entertaining the appeal on merits. However, in this case, the Tribunal has committed a fundamental error in insisting only upon production of Invoices, as evidence of goods being sold and ignoring the contract, R.A. Bills, etc. to arrive at the value of goods sold. Therefore, grave prejudice has been caused to the appellant and we are required to interfere with the impugned order. 9. In the peculiar facts of this case, it would be appropriate to set aside, and we hereby set aside the impugned order dated 12 September, 2012 of the Tribunal and remand the matter to the Tribunal to consider the stay application afresh and pass order after permitting the appellant to lead documentary evidence to es ..... X X X X Extracts X X X X X X X X Extracts X X X X
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