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2020 (3) TMI 201 - AT - Service TaxValuation - demand of service tax on the ‘gross turnover’ without giving any allowance for the material utilised in execution of the contract - period April, 2008 to March, 2012 - extended period of limitation - penalty u/s 76, 77 and 78 of FA - Cum-tax benefit - HELD THAT:- It is evident that the appellant have done ‘works contract’ wherein they have executing the work alongwith material. Thus, the gross amount paid to them by the principal, includes the value of materials. Further, the appellant are also assessed to sales tax and they have paid VAT on the value of the materials which are to be sold to the principal in the execution of work contract. In the impugned order, mistake in calculation of tax dues has already appreciated by the Commissioner (Appeals). Accordingly, the impugned order is set aside and remanded to the original adjudicating authority for re-determination of tax liability after allowing deduction for the material component, which is verifiable from the sales tax assessment order and also from the other records. Cum tax benefit - HELD THAT:- The appellant shall be entitled to cum tax benefit as already held by the Commissioner (Appeals) ‘and also entitled to turnover’. Imposition of penalty u/s 76, 77 and 78 of FA - HELD THAT:- In absence of any malafide no penalty is exigible under Section 76 and 78, as there is no case of deliberate default made out in the show cause notice - The penalty under Section 77 shall also stand reduced in terms of the re-quantification of the demand. Appeal allowed by way of remand.
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