2009 (10) TMI 567

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..... e Appellant. Shri H.D. Dave, Adcocate, for the Respondent. [Order]. - Appellant M/s. G. Tech Construction Co. is listed as service provider under the category of "Erection, Commissioning or Installation Services". During the period from 10-9-2004 to 31-3-2007, appellants had provided services to their client and claimed abatement of 67% under the Notification No. 19/2003-S.T., dated 21-8-2003, .....

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..... he fairly admitted that he has no evidence to show that the Commissioner's observation that liability to pay Service tax and interest is not challenged, is wrong. Therefore, the only issue to be decided is liability of the assessee for penalty under various Sections of Finance Act, 1994. 3.The appellants have been denied the benefit of Notification No. 19/2003-S.T., dated 21-8-2003 on the ground .....

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..... cess of the amount of Service tax calculated on a value which is equivalent on thirty-three per cent of the gross amount charged from the customer under a contract for supplying a plant, machinery or equipment and commissioning or installation of the said plant, machinery or equipment, subject to the following conditions, namely :- (i)the exemption contained in this Notification is optional to th .....

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..... the availment of Notification optional. 5. What the Notification implies is that gross amount charged from the customer shall include the value of Plant, Machinery and Equipment, parts and any other material sold by the service provider. I can not find any basis to interpret the notification to mean that if the service provider has not sold the material to the client but has used them whil .....

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..... the Notification which would mean that appellant would interpret the notification differently, penalty under Section 78 of Finance Act, 1994 cannot be upheld and is accordingly set aside. The Department's appeal regarding imposition of penalty under Section 76 also fails in view of the observations made above since as per provisions under Section 73 of Finance Act, 1994, where Service tax and inte .....

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