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2015 (11) TMI 1259 - AT - Service TaxWaiver of pre deposit - commercial or industrial construction service - benefit of Notification No. 1/2006-ST - Inclusion of value of free supply material - Held that:- No service tax was payable for the service rendered under works contracts prior to 1.6.2007. However, the amount deposited by it during the said period had been recovered from the customers and therefore the appellant is not entitled to refund thereof. Consequently the appellant cannot count it towards any pre-deposit - during period after 1.6.2007, at some point, the appellant started paying duty under Composition Scheme for works contract service which during the relevant period did not disallow availment of Cenvat credit in respect of input service. As regards the contention that there is no basis to infer that it has recovered an amount of ₹ 1,41,91,440/- towards service tax but deposited only ₹ 71,57,079/-, we find that primary adjudicating authority has taken into account the contention of the appellant and gave a finding as to how those figures were correctly worked out. It has observed that while the appellant started paying service tax under Composition Scheme for works contract service, it continued to recover higher amount of service tax by charging service tax from the customer at 33% of the value. Thus It is clear that as against recovery of ₹ 1,41,91,440/- towards service tax it only deposited ₹ 71,57,079/- and retained ₹ 70,34,361/-. Further the challans under which this amount is claimed to have been deposited do not bear any link with the impugned demand nor did the appellant claim so before the lower authorities. - Partial stay granted.
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