TMI Blog2019 (3) TMI 1382X X X X Extracts X X X X X X X X Extracts X X X X ..... paid on receipt basis but the SCN has proposed to demand service tax even on amounts not received - The appellant have contended that against billed amount of ₹ 46,17,956/- during the year 2004-05, out of which an amount of ₹ 38,13,398/- is outstanding as on 31.03.2009 and have submitted the C.A certificate certifying the same. This being so, Ld. Consultant is correct in his assertion that demand relating to the amount outstanding will not sustain - the demand of ₹ 10,16,862/- relating to alleged BAS provided by the appellants will not survive - demand do not sustain. GTA service - demand of service tax - liability of interest - Held that:- Demand of ₹ 2,00,218/- relating to GTA and interest liability amounting to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) Wrong availment of cenvat credit of ₹ 12,51,919/- without proper documents. (iii) Non-payment of service tax of ₹ 10,16,862/- on Business Auxiliary Service (BAS) (iv) Non-inclusion of value of consumables in the maintenance / repair work resulting in short payment of service tax of ₹ 1,96,952/- (v) Non-payment of service tax of ₹ 1,31,641/- on the commission received. (vi) Non-payment of service tax of ₹ 2,00,218/- under Transport of Goods service. (vii) Non-payment of interest of ₹ 13,861/-towards belated payment of service tax. Accordingly, show cause notice dt. 09.04.2010 was issued proposing recovery of these amounts, wherever applicable as also imposition of penalties under va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irmed. (vii) The adjudicating authority also imposed penalty equal to total payment confirmed of namely ₹ 29,73,390/- under Section 78 of the Finance Act, 1994. Aggrieved, the appellants are before this forum. 2.1 When the matter came up for hearing, on behalf of the appellants, Shri V.S. Sudhir, Ld. Consultant made oral and written submission which can be broadly summarized as under : 2.2 Service tax on consumables : The details of service tax demanded by SCN, dropped by OIO and amount paid by Appellant are as follows Particulars Amounts Total Demand as per the SCN in Annexure-A 67,75,647 Less: Demand dropped as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.4 The above arguments in respect of supply of raw material will therefore be applicable to the remaining demand of ₹ 15,59,958/- in respect of MMRS and demand of ₹ 1,96,952/- pertaining to non-inclusion of value of consumables for MMRS. 2.5 In respect of the demand of ₹ 10,16,862/- appellants were providing fabrication services of goods sent by manufacture on job work basis. The said manufacturer has paid excise duty on the final product hence therefore the job work charges are exempted vide Notification No.8/2005-ST. Ld. Advocate drew our attention to a letter dt. 29.06.2013 given by principal manufacturer to confirm that excise duty has been paid on the final product by the latter. 2.6 In respect of demand of & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by one. 5.2 With respect to remaining demand in respect of MMRS of ₹ 15,59,958/-, we agree with the Ld. Advocate that the services involved are in the nature of composite work contract including supply of material. In view of the ratio laid down by the Apex Court in L T Ltd. (supra) relied upon the Ld. Consultant, the said demand will require to be set aside, which we hereby do. 5.3 With respect to dispute on ₹ 10,16,862/- relating to job work charges, we find that appellants were providing job work services to M/s. Greaves Cotton Ltd. on goods supplied by them. Ld. Consultant has submitted a copy of letter dt. 29.6.2013 issued by M/s. Greaves Cotton certifying that appellants have undertaken job work for them which is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame will also not survive in view of the discussions herein above. The said demand is also set aside. 6. Coming to penalty even in respect of the demands which are not interfered with, it cannot be denied that there was some amount of confusion with respect to the taxability or otherwise of the concerned demands during the period of dispute. It cannot then be said that service tax had been evaded on account of wilful suppression or misstatement etc. For these reasons, we hold that imposition of penalty in respect to the remaining demands which are not interfered with, will also not survive. 7. In view of the discussions findings and conclusions herein above, we order as under : (i) Demand of ₹ 15,59,598/- and ₹ 1,96,952 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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