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2024 (5) TMI 671 - CESTAT CHANDIGARHNature of transaction - sale or service - Leviability of service tax on supply of ready mix concrete - demand confirmed on basis of difference of documents, without identifying the service. The case of Revenue is that the agreement reveals that appellant had to provide some services to M/s Signature Global (India) Pvt Ltd - appellant submits that they have only supplied the ready mix concrete which is an excisable product and has also paid VAT. HELD THAT:- The Department though alleges that the appellant has rendered some services to M/s Signature Global (India) Pvt Ltd, it has not been made clear what was the classification of the service and what was the consideration received for the same. In the absence of specific service being identified, it is not open for the Department to assume that some service was made and therefore service tax is payable. This approach is not legally sustainable; it is the responsibility of the person alleging to prove the allegation with evidence; the Department failed to do so; moreover, an attempt has been made to confirm the duty of service tax on the basis of discrepancy in various statements and figures. It has been held in number of cases that such confirmation of tax is not legally sustainable. This bench in the case of M/S INDIAN MACHINE TOOLS MANUFACTURERS ASSOCIATION VERSUS THE COMMISSIONER OF CENTRAL EXCISE, PANCHKULA [2023 (9) TMI 815 - CESTAT CHANDIGARH] has held 'It is a settled principle of law that service tax can be levied only when there is a clear identification of service provider, service recipient and consideration paid for the same. In the absence of any such evidence of the service recipient and the service provided, service tax cannot be demanded and confirmed.' Thus, demand of service tax cannot be confirmed without identifying the service and it cannot be confirmed on basis of difference of documents. Further, the issue of exigibility of supply of ready mix concrete to service tax has been decided in number of cases - the Tribunal in the case of GMK CONCRETE MIXING PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX, DELHI [2011 (11) TMI 425 - CESTAT, NEW DELHI] has observed 'Record does not reveal involvement of nay taxable service aspect in the entire supply of RMC. Rather the contract appears to be a sales contract instead of a service contract. In absence of cogent evidence to the effect of providing taxable service, primary and dominant object of the contract throws light that contract between the parties was to supply ready mix concrete but not to provide any taxable service. Finance Act, 1994 not being a law relating to commodity taxation but services are declared to be taxable under this law, the adjudication made under mistake of fact and law fails.' There are no merit in the impugned order; accordingly, the same is liable to be set aside - appeal allowed.
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