TMI Blog2013 (9) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... er or based on evidences and if so what type of evidence - An assessee cannot choose to pay either VAT or Service Tax as he pleases (obviously who will choose to pay that tax for which the rate is lower) and discharge of VAT on a particular value cannot be conclusive proof that the value of material involved corresponded to the value on which VAT was paid - In some cases Courts and Tribunal have taken such payment as sufficient proof. Prima facie the service tax authorities have every right to look into the issue whether the value had been correctly split - This issue had not been looked into at any stage by lower authority apparently because adequate documents other than payment of VAT have not been placed before the lower authority - T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cussed. In the case of the second project, he contents, no demand will arise. 3. Dispute in respect of Pacifica Tech Park 3.1 The basic dispute involved with reference to tax liability on this project is as under. The total taxable value of the contract is assessed at 186.54 crores. Appellants submit that they want to avail benefit of Notification 12/2003-ST for this project. This notification exempts so much of the value of all the taxable services, as is equal to the value of goods and materials sold by the service provider to the recipient of service, from the service tax leviable thereon under section (66) of the said Act, subject to condition that there is documentary proof specifically indicating the value of the said goods and ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id on materials used because the appellants have not claimed it. But the fact remains that many of the materials used in construction suffer excise duty and Appellants could take credit of such duty if a demand based on gross value of the contract is confirmed as is done in the impugned order. So the differential duty of 18.25 crores demanded in the impugned order is very high whichever way the matter gets resolved. 3.4 Actually we find that if abatement as provided under notification 18/2005-ST dated 07-06-2005 and notification 01/2006-ST dated 01-03-2006 is allowed the taxable value of service net of value of input services) works out to Rs. 61.38 crores (33% of 186 crores). As against this the appellants claim that the value of service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n done in an arbitrary manner or based on evidences and if so what type of evidence. An assessee cannot choose to pay either VAT or Service Tax as he pleases (obviously who will choose to pay that tax for which the rate is lower) and discharge of VAT on a particular value cannot be conclusive proof that the value of material involved corresponded to the value on which VAT was paid. In some cases Courts and Tribunal have taken such payment as sufficient proof. This appears to be a matter of expediency and we are prima facie of the view that the service tax authorities have every right to look into the issue whether the value has been correctly split. This issue has not been looked into at any stage by lower authority apparently because adequ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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