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Service Tax - Case Laws
Showing 21 to 40 of 2343 Records
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2015 (12) TMI 1540 - CESTAT HYDERABAD
Valuation - works contract service - non-monetary consideration - services provided to landlords for construction services under joint development agreement - waiver of pre-deposit - Held that:- appellant is not the owner of the land on which the construction of apartments was executed by them. The owner(s) of the land were assigned 30 apartments and remaining were disposed off to other individuals under two categories of agreements, outright sale on the one hand and contract for construction of apartments on the other. Prima facie, it would appear that development of the property had been effected by construction of the 42 apartments, which were not handed over to the landowners as the consideration. It would, therefore, appear that the service had been rendered to the land owners for which consideration was not monetary but in the form of apartments for disposal - prima facie case is against the assessee. - stay granted partly.
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2015 (12) TMI 1498 - MADRAS HIGH COURT
Waiver of pre deposit - Section 35F - whether the amended provisions of Section 35F of the Central Excise Act, 1994, would be applicable or the unamended provisions of Section 35F of the Central Excise Act, 1994, would be applicale and what are the requirements to be fulfilled under the required provision - Overriding Commission - Held that:- As per the decision of the Hon 'ble Supreme Court, in the case of Garikapatti Veeraya v. N.Subbaiah Choudhry and others [1957 (2) TMI 54 - SUPREME COURT], the right of appeal is to be governed by the law prevailing at the date of institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of filing of the appeal. - Thus, it is clear that the law applicable to the case of the assessee is the unamended provision of Section 35F of the Act,
As the assessee was of the strong view that, the assessee has a better case on the issue of liability and perhaps carried away by this view, it did not raise the issue regarding the financial hardship. However, the Tribunal is expected to exercise its discretion, vested under the unamended provisions of Section 35F of the Act. In this case, there is a failure to exercise the discretion, as the Tribunal had lost sight of the provision applicable to the case, having regard to the date of filing of the appeal. When the Tribunal had failed to exercise the discretion, this Court is bound to interfere. Further, the order passed by the Tribunal did not indicate that, it has considered the materials to come to a prima facie conclusion. Hence, the order is liable to be set-aside, as the order had been passed, invoking the amended provisions of Section 35F of the Act, whereas the law applicable to the case of the assessee is proviso to unamended Section 35F of the Act. - Matter remanded back - Decided in favour of assessee.
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2015 (12) TMI 1497 - CESTAT NEW DELHI
Demand of service tax - activity of galvanization of hand pump Parts - whether the activity undertaken by the appellants is a service falling under BAS, or a process of manufacture as contended by them - Held that:- while the processing or production of goods for, or on behalf of the client falls under the Category of BAS, the same does not cover any activity that amounts to manufacture of excisable goods in terms of clause (f) of Section 2 of Central Excise Act, 1944. The appellants do appear to have an arguable case. Further they have raised the issue if limitation. That the Department was always aware of the fact that they were carrying out job work and not paying service tax for such job work which reflected in ER-I returns. That they were reversing credit in respect of Zinc & Furnace oil in connection with job work and that the same-was would reveal that there was no suppression of facts or any intention to evade payment of duty. - Partial stay granted.
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2015 (12) TMI 1496 - CESTAT MUMBAI
Demand of service tax - services provided to self - Management, Maintenance or Repair services - Held that:- To maintain ones own equipment, to optimize the usefulness, by maintenance and repair, in the BOOT period, is certainly not liable to Service tax as services rendered to self cannot be taxed. - There is nothing on record to indicate contrary in the appeal filed by the Revenue - In our view the impugned order as well as the order of the adjudicating authority are correct, legal and does not suffer from any infirmity. - Decided against Revenue.
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2015 (12) TMI 1495 - CESTAT MUMBAI
Valuation of goods - Free issue of SIM Cards - Telephone Services - Whether during April 2003 to September 2006 distribution of free of recharge voucher attracts service tax liability or otherwise despite the fact that the recharge voucher are given free of cost to the dealers as consideration for commission - Held that:- Appellant is discharging the service tax liability under the category of "Telephone Services" on an amount received by them from distributors/dealers for the sale of prepaid SIM Cards; the SIM Cards are sold to the distributors/dealers on MRP and in lieu of the commission payable to them, appellant issues recharge vouchers to that amount which is commission, as free of cost. It is also undisputed that the dealers have recovered the amount as sale of such recharge vouchers from the ultimate subscriber/customer
Value of any taxable service shall be gross amount charged by the service provider for such services rendered by him. In the case in hand, during the relevant period, the appellant herein being service provider has discharged the service tax liability on the prepaid SIM Cards sold by them to the distributors/dealers. The sale of such prepaid SIM Cards on the MRP value is undisputed and discharge of service tax liability for services rendered on such sale is also accepted by revenue. It is to be noted that the recharge voucher are distributed free of cost, appellant has not received any amount towards the recharge voucher, though the distributors/dealers have sold the recharge vouchers. In our view distribution of recharge voucher fee of cost to the distributors/dealers would in a way amount to giving commission to the dealer for the transactions of sale of prepaid SIM Cards for the appellant. It can also be noticed that during the relevant period the Explanation as per the Section 67 of Finance Act, 1994 (herein above reproduced) also do not indicate inclusion in that gross value of any cost towards free distribution made by the service provider.
Gross amount paid by the person to whom telecommunication service is actually provided is the amount on which tax liability is to be discharged which would mean that prior to 01.03.2011, the amount received by telecommunication provider from the dealer is the amount received for the services provided by the service provider - ratio of judgement of the Tribunal in the case of BPL Mobile Cellular (2007 (6) TMI 107 - CESTAT, CHENNAI) on similar set of facts would be applicable. In the case of BPL Mobile Cellular the issue was regarding discharge of service tax on an amount received by the appellant therein for the sale or prepaid SIM Cards to the dealers and distributors; in that case the appellant threrein discharge the service tax liability on actual amount received from the distributors after adjustment of commission payable to them - Impugned order is unsustainable and is liable to be set aside - Decided in favour of assessee.
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2015 (12) TMI 1494 - CESTAT MUMBAI
Demand of service tax - Maintenance and Repair Service - major part of the demand relates to the period 28/11/2003 to 16/06/2005 - Held that:- Service tax liability arises only if the service is provided under maintenance contract or an agreement and in relation to maintenance or repair or servicing of any goods or equipment. In the case in hand, the first appellate authority as well as the adjudicating authority has clearly recorded that the appellant had carried out electrical work at various parts of the service recipient's factory. On perusal of the impugned order, at paragraph No.10, we find that the work-order issued to the appellant indicates that the activity carried out by the appellant is in respect of wiring and fixing of lights which would not fall under the category of 'maintenance or repair service' of any goods or equipment during the relevant period. We also find that the Tribunal in the case of Basant Enterprises vs. Commissioner of Central Excise [2011 (4) TMI 550 - CESTAT, NEW DELHI] has considered an identical issue and held in favour of the assessee therein. We find that the said ratio would be applicable in the case in hand also, upto 16/06/2005 - for the period post 16/06/2005, in the appellant's case, service tax liability of ₹ 5,084/- along with interest has to be upheld - Decided partly in favour of assessee.
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2015 (12) TMI 1452 - CESTAT MUMBAI
Utilization of CENVAT Credit to pay service tax under reverse charge - levy of service tax on import of services u/s 66 A of the Finance Act 1994 - Held that:- Plain reading of the said sub-Rule 4 of Rule 3 of CCR indicates that Cenvat Credit may be utilized for the payment of service tax on any output service. We find from the provisions of Rule 2(r), which provides that "provider of taxable service" includes person who liable for paying service tax; Rule 2(p) provides that "output service" means taxable service provided by the provider of taxable service. Reading holistically, if the appellant is required to discharge the service tax under reverse charge mechanism, then it has to be conclude that he is provider of taxable service who provides output service.
In our view, the lower authorities were incorrect in interpretation of the provisions and holding that appellant could not have utilised Cenvat Credit for discharge of service tax. - impugned order is incorrect and unsustainable. The impugned order is set aside - Decision in the case of TATA AIG Life Insurance (2014 (4) TMI 637 - CESTAT MUMBAI) and Panchmahal Steel Ltd. (2014 (12) TMI 876 - GUJARAT HIGH COURT) followed - Decided in favour of assessee.
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2015 (12) TMI 1451 - MADRAS HIGH COURT
Benefit of VCES - whether the petitioner, who is an assessee for the service tax payable for the years 2010- 11, 2011-12 and 2013-13, is entitled to file the declaration on 21.6.2013 before the fourth respondent seeking to declare that the petitioner is entitled to get the benefit of VCES in the light of Section 106(2) of the Finance Act, 2013 - Held that:- If a declaration is made by a person against whom an inquiry or investigation in respect of a service tax not levied or not paid or short-levied or short-paid has been initiated by way of search of premises or an audit has been initiated, during the pendency of such an inquiry as on the first day of March, 2013, the designated authority shall by an order reject such declaration with the reasons to be recorded therein.
In the present case, admittedly the premises of the petitioner came to be visited by the internal audit section of the respondents and an audit was conducted on 25.2.2013 and 28.2.2013. During the course of audit, the audit party noticed that the assessee was also providing renting of immovable property service, but had not taken registration for this service nor had included this service in the service tax registration certificate and also not paid the service tax for the renting of immovable property service. Hence the matter was under consideration of audit as on 1.3.2013, which is not yet being over. Therefore, as per Section 106(2) of the Finance Act, the petitioner is not entitled to get the benefit of the Service Tax Voluntary Compliance Encouragement Scheme, 2013 (VCES), hence the fourth respondent, rightly in this case, has rejected the application dated 21.6.2013 holding that the petitioner is not entitled to get the benefit of the VCES.
Court is not inclined to interfere with the impugned order of rejection of the declaration filed by the petitioner. Accordingly, the writ petition fails - Decided against assessee.
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2015 (12) TMI 1450 - MADRAS HIGH COURT
Delayed filings of return - Penalty u/s 76 - claim of relief for waiver of penalty u/s 80 - outdoor publicity services - Held that:- t the appellant had not furnished any material to substantiate its claim that it was under severe financial hardship. - no materials were made available, by the appellant, to show that the erstwhile partnership firm had been converted into a sole proprietary concern. The service tax payable, by the appellant, for the period, between May 1997 and April 2000, had not been paid, for nearly about 3 years. Therefore, the appellant had been imposed with the penalty, under Section 76 of the Act. Since no acceptable cause or reason had been shown by the appellant for exercising its discretion, for waiving the penalty, under Section 80 of the Act, the penalty amount levied on the appellant had been confirmed by the Tribunal. In such circumstances, we do not find any reason to interfere with the impugned order passed by the Tribunal, dated 22.11.2010. Further, it is seen that the decisions relied on by the learned counsel, appearing on behalf of the appellant, are not applicable to the facts and circumstances of the present case.
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2015 (12) TMI 1449 - CESTAT MUMBAI
Business Auxiliary Service - Invocation of extended period of limitation - commission received by the respondent from BSNL for the sale of SIM cards - Held that:- in the case of Prakash R. Jaiswal (2015 (12) TMI 680 - CESTAT MUMBAI), it was held that, invocation of extended period in this case seems to be incorrect as the issue was being agitated before the judicial forum. Accordingly, we hold that the show-cause notice which invokes the extended period for demand of service tax from the appellant-assessee needs to be set aside and we do so. However, for the demand within the period of limitation from the date of issuance of show-cause notice we hold that the appellant-assessee is liable to pay the service tax liability along with interest.
In the present case, service tax arises within the limitation period and the respondent-assessee is liable to pay the service tax along with interest. - Decided partly in favor of assessee.
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2015 (12) TMI 1448 - CESTAT MUMBAI
Demand of service tax - renting of cab without transferring control - whether levy of service tax under new category would mean that it was not taxable earlier - whether the appellant-asessee who was entered into a contract of hiring of vehicles falls under the category of "Rent-a-Cab scheme operator" is liable for service tax under the category of "Rent-a-Cab Service" or otherwise - Held that:- Judgement of the Hon'ble High Court of Uttrakhand in the case of Sachin Malhotra (2014 (10) TMI 816 - UTTARAKHAND HIGH COURT) is specifically on the issue. We note that Hon'ble High Court was called on to decide the question of law on the issue whether hiring of vehicles would fall under the category of Rent-a-cab scheme operator" or otherwise - Tribunal did take a view against the assessee but the Tribunal's judgement [2013 (7) TMI 816 - CESTAT NEW DELHI] was delivered on 02.05.2013 while the judgement of the Hon'ble High Court of Uttrakhand was delivered on 06.08.2014.
Further, we notice that the Hon'ble High Court of Uttarakhand in the said judgement has distinguished the judgement of the Hon'ble Madras High Court in the case of Secy. Federn of Bus-operators Assn. of Tamil Nadu [2001 (4) TMI 7 - MADRAS HIGH COURT]as well as the judgement of the Hon'ble High Court of Delhi in the case of Kuldip Singh Gill [2005 (5) TMI 353 - CESTAT, NEW DELHI]. This judgement of the High Court of Uttarakhand being a recent one we follow the same and hold that the impugned order is unsustainable and liable to be set aside on merits itself.
When the lawgiver introduced this new source of taxation, it must be treated as having been aware of the distinct concept of renting a cab for which there is provision in the Central Legislation, namely, Section 75 of the Motor Vehicles Act and also a scheme stood framed as early as in 1989. We are, therefore, of the view that, unless there is control, which is passed to the hirer under the rent-a-cab scheme, there cannot be a taxable transaction under Section 65(105)(o), read with Section 65(91) of the Service Tax Act - Decided against Revenue.
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2015 (12) TMI 1405 - CESTAT NEW DELHI
Denial of refund claim - Notification No.17/2009-ST dated 7.7.2009 - claim for refund on transportation/freight - Held that:- Board Circular seeks to explain the scope of Section 154 of the Customs Act. This provision enables correction of arithmetical mistake in any decision or order passed by the Central Government, Board or any officer under the Customs Act, 1962. The corrigendum dated 14.8.2012 was however explicitly issued in exercise of powers under Section 74 of the Finance Act, 1994. Section 74 authorizes rectification of any mistake apparent from the record. It is axiomatic and this is also not contested by the respondent/Revenue that appellant was entitled to refund of service tax on transportation/freight charges incurred on transportation of exported goods from the place of clearance to the port of export though not on transportation of empty containers. A clarification dated 19.7.2012 addressed by the appellant, in response to the departmental notice dated 24 21.6.2012 contains the clear assertion that transportation and freight charges were not incurred on empty containers. - appellant is entitled to succeed. - Decided in favour of assessee.
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2015 (12) TMI 1404 - CESTAT ALLAHABAD
Demand of service tax - Goods Transport Operator service - Notification Nos, 42/97-ST & 43/97-ST both dated 05.11.1997 read with Rule 2 (c) (d) of Service Tax Rules, 1994 - Held that:- Issue is squarely covered by the earlier ruling of this Tribunal in the cases of L.H. Sugar Factories Ltd. (2005 (7) TMI 106 - SUPREME COURT OF INDIA) &. Hi-Tech Carbon (2004 (8) TMI 7 - CESTAT (NEW DELHI)). Accordingly, the impugned order is set aside - Appellant, has pointed out that the total demand of ₹ 8,03,076, was raised on the Assessee, out of which, ₹ 3,74,294/- was paid by them before issuance of show-cause notice and during investigation, they also paid ₹ 4,28,782/- on 27.11.2003 before passing of the Order-in-Original. In the present circumstances, it is not an issue of unjust enrichment involved and the Appellant is also entitled to refund - Decided in favour of assessee.
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2015 (12) TMI 1403 - CESTAT NEW DELHI
Demand of service tax - franchise service - presumption and arbitrary quantum while doing best judgement assessment - Suppression of facts - invocation extended period of limitation - Held that:- Adjudicating authority has observed that the appellant “deliberately tried to suppress the facts from the Department” and then adds that “M/s. Carlsberg India Pvt. Ltd. wilfully suppressed all the material facts regarding nature of service provided by them in respect of “Intellectual Property Services other than Copyright” and the gross amount received by them during the aforesaid period as royalty / franchisee service and at no stage did they enquire about taxability of their services”. It is obvious that the paragraph has been written without application of mind because in the present case no amount was received by the appellant “as royalty/franchise service”; indeed the appellant paid the amount to foreign based company. The appellant did not provide the alleged services, but was the recipient of the alleged services.
In the Show Cause Notice dated 18.10.2012, the figures for 2011-12 have been taken to be 10 times those for 2010-11 under the “best judgment assessment” without any basis / reason which almost smacks of outright mala fide and the adjudicating authority blindly adopted those figures under “best judgment assessment” without even a whisper as to how such a quantum jump (tenfold) in the assessable value was justifiable as 'best judgement assessment' under Section 72 ibid
Appellant made elaborate arguments in its written submissions that the service received by it did not satisfy the definition of franchise service under Section 65 (105) (zze) ibid, but the adjudicating authority summarily states (without any analysis) that its contentions do not hold ground. Indeed, as brought out hereinabove, perusal of paragraphs 36 to 41 of the impugned order quoted above makes it so amply clear that the order fatally suffers from lack of analysis/discussion regarding the contentions and arguments of the appellant and makes a mockery of the quasi-judicial process in-as-much-as it is not merely non-speaking, but also absurd in parts.
In the absence of analysis/reasoning with reference to the contentions of the appellant, the conclusions drawn in the impugned order are rendered lifeless - we set aside the impugned order and remand the case to the adjudicating authority for de novo adjudication after giving the appellant an opportunity of being heard. - Decided in favour of assessee.
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2015 (12) TMI 1397 - CESTAT NEW DELHI
Denial of CENVAT Credit - Service tax paid on outward transportation - Held that:- As per the provisions of section 4 (3) (c) of the Central Excise Act, 1944, the place or removal in this case shall be the buyers factory, where the goods are ultimately delivered by the appellant. Reading of the inclusive part of definition of 'input service' makes the position clear that if the place of removal is premises of consumer, then the assessee shall be entitled to cenvat credit of service tax paid on the freight element for movement of goods from the factory to such destination point - if under the terms of the contract, the sale takes place at the destination, then that place will be considered as the place of removal and service tax paid on GTA service for transporting the goods, up to the destination, will be available for Cenvat credit - since the freight amount inclusive of service tax has been charged in the bill and the billed amount was paid by the buyer to the appellant, in my considered opinion, the service tax component on which the appellant took Cenvat credit is forming an integral part of the price of goods. - No merit in impugned order - Decided in favour of assessee.
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2015 (12) TMI 1396 - CESTAT NEW DELHI
Denial of CENVAT Credit - Manpower service for maintenance of garden - Held that:- In the case of Stanadyne Amalgamations Pvt. Ltd (2011 (2) TMI 644 - CESTAT, CHENNAI) , the statutory requirement under the pollution Control norms for maintenance of garden was not the issue before the Tribunal. Further, in the case of Grasim Industries (2010 (11) TMI 266 - CESTAT, CHENNAI) , no specific reason has been assigned by the Tribunal as to why service tax paid on the maintenance service shall not be eligible for cenvat credit. Since, the issue in hand is squarely covered by the decision in the case of Hindustan Zinc (2013 (11) TMI 407 - CESTAT NEW DELHI) , I am of the considered view that the appellant shall be eligible for cenvat credit of service tax paid on manpower supply service, utilized for maintenance of the gardens within the factory. - No merit in impugned order - Decided in favour of assessee.
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2015 (12) TMI 1394 - CESTAT NEW DELHI
Denial of CENVAT Credit - service tax paid on the freight charges for transportation of goods up to the buyer's premises - transportation service has not been used either directly or indirectly in or in relation to manufacture of assesse's final product - Held that:- Facts are not in dispute that the ownership of the goods and the title in the goods remained with the respondent till delivery of the goods in acceptable condition to the purchaser at his door step; that the Respondent bore the risk of loss or damage to the goods during transit to the destination; and that the freight charges were an integral part of the price of the goods. The term 'place of removal' has been defined in section 4(3)(c) of the Central Excise Act, 1944, which also includes "any other place of removal where the excisable goods are to be sold after their clearance from the factory". In the present case, since the title or ownership of goods passed on to the buyer at their site, such site of the buyer will be considered as the "place of removal" and as per the definition of input service, the freight payable for such transportation of goods will be considered as input service for the purpose of taking cenvat credit. - Decided against Revenue.
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2015 (12) TMI 1360 - CESTAT MUMBAI
Demand of service tax - works contract - Erection, Commissioning and Installation Services; Site formation Services and GTA Services - Held that:- As regards the service tax liability on the Erection Commissioning and Installation Services for MKVDC; the contract/work order is nothing but a works contract. Law has been settled by the Supreme Court in the case of CCE Vs. Larsen & Toubro Ltd. and others [2015 (8) TMI 749 SC] - As regards the service tax liability under the category of Site Formation Services, Larger bench has settled the law as to laying of pipes /conduits for lift irrigation system undertaken for government/government undertakings and involving associated activities like soil preparation and filling, supporting masonry services gets classified as works contract, and is exempted from the service tax liability by the exempted granted in definition of Works Contract Services under section 65(105) (zzza) of the Finance Act, 1994.
GTA Service - Appellant is not seriously contesting the tax liability and has already discharged the tax liability and interest and the prayer is only for setting aside the penalties. We find that the appellant had discharged the tax under the head GTA services before the issuance of show cause notice and has also paid the interest due. In our view, the issue of taxability under GTA services is one of interpretation, hence appellant could have entertained a belief that the services are taxable in the hands of the transporters. Accordingly, we are on the view that the penalties imposed on the appellants on this count needs to be set aside - Decided partly in favour of assessee.
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2015 (12) TMI 1359 - CESTAT CHENNAI
Condonation of delay - Power of commissioner to condone delay beyond condonable period - Held that:- Supreme Court clearly held that the Commissioner (Appeals) has no power to condone the delay after expiry of 30 days period as provided under Section 85 of the Finance Act, 1994. We agree with the submission of the Revenue that there is no power of Commissioner (Appeals) to condone the delay. The wrong mentioning of the period of limitation in the preamble cannot override the statutory provision. We also notice that the Tribunal in the case of Raghav Industries (2008 (5) TMI 537 - CESTAT, NEW DELHI) and Sagar Enterprises (2009 (4) TMI 690 - CESTAT, CHENNAI) dismissed the appeal on the similar ground. - reason to interfere with the order of the Commissioner (Appeals) - Decided against assessee.
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2015 (12) TMI 1358 - CESTAT NEW DELHI
Denial of the benefit of 67% abatement under Notifications No. 15/2004 - ST, dated 10.09.2004 and No.1/2006 - ST, dated 01.03.2006 - Inclusion of value of free supplies - Held that:- in the adjudication order there is no evidence mentioned which was relied upon to arrive at a finding that there were free supplies of material by the service recipients. It is also seen that the adjudicating authority has recorded the submissions of the appellant that the projects mentioned above were exempt and the reasons therefor given by it (i.e., the appellant). However, we find that in the "discussion and finding" portion of the impugned order, there is no discussion or finding on the appellant's pleadings/contentions with regard to the non-taxability of the service rendered to IIT Delhi, National Press Centre, Dame Depot of Delhi Metro etc.
The observation of the adjudicating authority that " in this case the dispute does not relate to the services and service tax payable thereon but is solely revolves around the issue of short payment of service tax due to non-inclusion of cost of raw-materials and goods supplied free by the recipients of service " is totally absurd because the dispute clearly relates to the taxability of the service rendered as the appellant had contended that the projects named above were exempt from payment of service tax and, as stated earlier, the issue of free supplies is conspicuous by its absence (rather than presence) in the present case. It seems that the "discussion and finding" portion of the impugned order is a shoddy and careless cut-and-paste job from another adjudication order which the adjudicating authority may have passed in relation to an earlier show cause notice which finds mention in the show cause notice dated 24.05.2012 related to the impugned order. - we set aside the impugned order and remand the case to the primary adjudicating authority to pass a speaking order taking into account the pleadings and contentions of the appellant - Decided in favour of assessee.
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