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2019 (6) TMI 1540 - AT - Service TaxErection, Commissioning and Installation service - Construction Services other than residential complex (including commercial/industrial building or civil structure and “Management Maintenance or Repair Services - VCES Declaration - demand for the period 2008-09 to 2012-13 on the basis of Income Tax returns and Form AS 26 - benefit of abatement in terms of Notification No. 1/2006-S.T., dated 1-3-2006 - HELD THAT:- All the services have duly been explained with the respective amount received qua the same. Hence, it cannot be presumed that sufficient evidence would not have been provided by the Appellant. Adjudicating authority has talked about going through the contract which again corroborates absence of relevant evidence as has been taken a ground for confirming the demand irrespective to a lesser extent than it was proposed. The Learned Commissioner has failed to appreciate the honesty of the appellant that wherever the value of services were not inclusive of material used or consumed, appellant declared the tax payable at full applicable rate (without abatement) and where the value charged was inclusive of material used and consumed in rendering the services, abatement was claimed. There is no doubt that the work orders were for up-keeping of lawns & parks with material, i.e. supply of manures (goat difng/compost khad), pesticides, insecticides, flower pots in different sizes, grass cutting machine, plastic pipes, plants etc. These are the items on which no sales tax is payable, however, the Thermal Power Station deducted TDS under Works Contract Tax (WCT) as per Sales Tax/VAT Rules, thus, the abatement was claimed only on the value of services on which TDS under WCT Rules was deducted. Copies of work orders etc. in relation to maintenance and up-keeping of lawns & parks. The demand of ₹ 22,36,44/ has been confirmed without appreciating the relevant documents and rather in self despite the adjudicating as is discussed above. The adjudicating authority has also observed that the difference in Tax liability is mostly on account of calculation by availing abatement, whereas it was not admissible to them. The mistake of the Appellant for short declaration of tax liability is rather held to be a bona fide mistake on the part of the Appellant. The declaration is denied to be a false declaration. The confirmation of penalty still, under Section 78 of Finance Act, 1994, therefore, is held to be contradictory to the said observations. Matter remanded back to the adjudicating authority for de novo adjudication of the entire demand, however, keeping in view impugned adjudication, after due consideration of the documents on record, specifically, the certificate and other documents for the abatements as well w.r.t. as the threshold limit of the preceding year - Appeal allowed by way of remand.
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