TMI Blog2018 (9) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the demand so worked out. If any amount remains unpaid after such adjustment the same needs to be recovered from the respondents. Appeal dismissed - decided against Revenue. - Appeal No. ST/86163/2015 ST/CO/91198/2015 - Order No. A/87217/2018 - Dated:- 29-8-2018 - Hon ble Dr. D. M. Misra, Member ( Judicial ) And Hon ble Mr. Sanjiv Srivastava, Member ( Technical ) Shri Dilip Shinde, Assistant Commissioner ( AR ), for appellant None for respondent ORDER Per: Sanjiv Srivastava This is an appeal filed by the revenue challenging the order of Commissioner (Appeal). In the appeal, appellant is claiming following relief: to set aside the Order in Appeal No NGP/EXCUS/000/APP/226/14-15 dated 22.12.2014 passed by the Commissioner (Appeal) Customs And Central Excise, Nagpur to the extent of ₹ 40,39,101/- in so far as it relates to differential payment of Service Tax. 2.1 Respondents in the present case engaged in providing taxable service under the category of Management, Maintenance or Repair Service as defined under Section 65(64) and 65(105)(zzg) of the Finance Act, 1994. In respect of certain taxable services provided to M/s WCL Chandarpu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. The ground specified in the appeal memo being that. i. Works Contract (Composition Scheme for payment of service Tax) Rules, 2007, effective from 1.6.2007 is not applicable as the services provided are not Work Contract Services ; ii. Abatement under Notification No 1/2006 dated 1/03.2006 is not admissible as the services provided namely Management, Maintenance or Repair Service rae not specified services under the notification; iii. Notification No 12/2003-ST dated 20.06.2003 is not admissible as the benefit under this notification is admissible subject to fulfillment of the conditions specified in the notification. Since these conditions are not fulfilled in the present case the benefit under this notification is not admissible. iv. In support they relied upon following decisions- a. Safety Retreading Company (P) Ltd Vs Commissioner Central Excise, Salem [2012 (26) STR 225 (T-Chennai) b. Laxmi Tyre Vs Commissioner Central Excise Pune [2014 (36) STR 364 (T-Mum)] c. Idea Mobile Communication Ltd Vs Commissioner Central Excise Cochin [2011 (23) STR 433 (SC)] d. Indian Coffee Worker s Co-op Society Ltd. Vs Commissioner Central exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods involved. Therefore, she supported the order-in-original and stated that the Order of the Commissioner is in accordance with law and the appellants are liable to pay service tax on the gross receipts. She also invited our attention to the Commissioner s order wherein he has relied on the Board s Circular dated 3-3-2006 according to which the appellants could have availed of the abatement only after producing the documentary evidence. She stated that there is actually no documentary evidence for the abatement claimed. This 30% : 70% appears to be arbitrary. In this view of the above, she requested the Bench to uphold the order of the Commissioner of Service Tax. 8. On a very careful consideration of the fact, we find that there is no dispute with regard to the leviability of service tax on the maintenance and repair services. The main point of dispute is with regard to the valuation. However, Section 67 of the Finance Act clearly provides for the abatement of the value of the goods sold in the course of the carrying out of the service. The point is whether the goods are actually sold. According to the department, the contract is only for the maintenance and repair. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30% of the value of the total contract. We would like to state that the data provided by the appellant shows that the adoption of 30% of the value of the contract towards value of services rendered appears to be reasonable in the light of the payment of sales tax on the 70% value which has also been accepted. Therefore, this valuation cannot be said to be arbitrary. In these circumstances, we do not find any merit in the impugned orders. Since, the demand of duty is not sustainable the demand of interest, penalty etc. also are not justified. Hence, we allow the appeals with consequential relief. 6.2 This decision of tribunal has been approved by the Apex Court as reported in 2012 (28) S.T.R. J44 (S.C.). 7.0 Commissioner (Appeal) has in para 6.2 of his order has listed out the documents which were produced before him on basis of which he concluded that the value of material sold during the course of providing the said services has been made available. The documents so perused and considered by him are listed below- a. Copies of Work Order relied upon in the show cause notice; b. Ciopies of the VAT return filed by them during the period covered in the show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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