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2019 (3) TMI 1382 - AT - Service TaxShort payment of service tax - Management, Maintenance or Repair Service - October 2004 to September 2008 - Held that:- The services involved are in the nature of composite work contract including supply of material - reliance placed in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT], where it was held that Works contract were not chargeable to service tax prior to 1.6.2007 - demand do not sustain. Demand of service tax - job work charges - Business auxiliary service - Held that:- During the disputed period service tax is required to be 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 ₹ 13,861/- has been conceded by the Ld. Consultant and hence demand on that score are not interfered with and upheld. Demand of service tax - consumables - Held that:- In respect of demand of ₹ 1,96,952/- on consumables admittedly used in the composite contracts, the same will also not survive - said demand is also set aside. Penalty - Held that:- 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. - the imposition of penalty in respect to the remaining demands which are not interfered with, will also not survive. Appeal allowed in part.
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