TMI Blog2009 (5) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... ara 6 of order of adjudication stating that the appellant is providing various interior services such as wooden partition, plastering, painting, civil work, jointly items, floor and wall tiling and other similar services in respect of building or civil structure or part thereof. The contract executed by the appellant was item rate contract which includes the cost of interior also. Such a fact was also found by department examining detailed invoices raised by the appellant. According to department, the value of material used by the Appellant not being separately indicated on the invoices and service Tax was charged on the invoice value after availing abatement of 67%, the appellant is dis-entitled to the abatement of 67% under Notification N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson by another person, in relation to construction of complex referred to in sub-clause (zzzh) of clause (105) of Section 65 of Finance Act, 1994 to the extent 67% of the Service tax imposable on the gross value of service provided relating to above category. Revenue does not intend to be unjustly enriched when elements of goods is involved in a works contract and such goods are liable to be excluded from purview of service tax. Keeping such principle in view, contracts involving work and goods are now dealt by specific rule framed for works contractors. Such a rule has come into force from 1-6-2007. Present appellant s case is relating to the period 10-9-04 to 31-3-07. Therefore the appellant shall not be governed by the valuation rules r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of appellant does not fall under proviso to para 1 of Notification No. 18/2005-S.T., dated 7-6-2005. Rather it portrays that the activity of completion and finishing does not involve materials. We noticed that although the nature of the activity of completion and finishing was claimed by the assessee as entitled to abatement, the assessee did not bring evidence to the satisfaction of law. 5. Appellant s counsel submitted that the appellant has made a deposit of Rs. 2.67 crores, admitting its liability while filing the returns. Adjudication has been made after filing of the return and that was open to investigation. We find that the ld. Commissioner has brought out in para 53 of the order of adjudication that there was wilful suppressi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions of both sides in respect of evidence on material involvement in the contract can undergo scrutiny in the course of regular hearing. 8. We make aforesaid direction for pre-deposit to hear the appeal which is a conditional right and following the ratio laid down by Apex Court in the case of Dunlop India Ltd. reported in 1985 (19) E.L.T. 22 (S.C.) and Benara Valves v. CCE reported in 2008 (12) S.T.R. 104 (S.C.) = 2006 (204) E.L.T. 513 (S.C.). Accordingly, we direct pre-deposit of Rs. 2 crores (Rupees two crores) to be made within six weeks from today and the appellant shall make compliance on 14-7-2009. If above direction is carried out, realisation of the balance demand shall be stayed during pendency of appeal. (Dictated and pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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