TMI Blog2013 (9) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... gross amount charged for the transaction for the period on or after 16-6-05 along with interest thereon in terms of provisions of Finance Act, 1994 - Following Speedways Tyre Service Versus Commissioner of Central Excise, Ludhiana [2008 (12) TMI 98 - CESTAT NEW DELHI] and Safety Retreading Company (P.) Ltd. Versus Commissioner of Central Excise, Salem [2012 (6) TMI 719 - CESTAT, CHENNAI (THIRD MEMBER)]. The appellant would also be eligible to take Cenvat Credit of the excise duty/CVD, if any paid, on the materials used for the retreading service, in accordance with law - Since the issue involved interpretation of law and there were conflicting views on the subject matter, imposition of penalty was not warranted and the same was set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken by them. Accordingly a show cause notice dated 23-10-2008 was issued by the appellant demanding service tax of Rs.81,02,735/- on the gross amount charged by the appellant amounting to Rs. 7,55,27,999/- by classifying the service under the taxable service category of "management, maintenance or repair service". The said notice also proposed to recover interest on the service tax demanded and also proposed to impose penalties on the appellant under the provisions of the Finance Act, 1994. The said notice was adjudicated by the Commissioner of Central Excise Pune III who held as follows:- a) Uptill 16 th June, 2005, the services of maintenance of repair had a condition that only services which were covered under a maintenance contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provider to the recipient of the service is excludible subject to the condition that there was documentary proof specifically indicating the value of the said goods and materials. The materials tread rubber, cushion gum and rubber adhesives etc., have been consumed in the course of retreading of tyres and there is no independent sale. The bifurcation of the invoice value into 70% materials cost and 30% labour charges is arbitrary. As per the provisions of section 65(64) read with section 66 and 67 and its explanation, the value of taxable services for the purpose of service tax is the gross amount charged from the customer for the services rendered and the goods consumed in the process of rendering service cannot be an item of sale and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... videncing sale of goods for the purpose of notification No.12/2003-st and the assessee is not entitled to benefit of cost deduction on raw materials consumed in providing the service. Further the Larger Bench of this Tribunal in the case of Aggarwal Colour Photosystem case had held that the term sold' appearing in notification no. 12/2003 has to be interpreted using the definition of sale' in the Central Excise Act, 1944 and not as per the meaning of deemed sale under Article 366 (29A) (b) of the Constitution. Accordingly he prays for allowing the appeal. 5. The ld. Counsel for the Respondent, on the other hand, argues that the order of the Ld. Commissioner is sustainable in law. He relies on the decision of this Tribunal in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion regarding the value of the goods sold. 6.2 Notification No.12/2003-ST dated 1-7-2003 grants exemption from so much of the value of all the taxable services, as is equal to the value of goods and materials sold by service provider to the recipient of service, subject to condition that there is documentary proof specifically indicating the value of the said goods and materials. Unless the document indicates the description and quantity of goods sold, its unit rate, the value of goods, it is difficult to accept to accept the plea that the condition of the notification is satisfied. This was the issue for consideration before the Larger Bench in the Aggarwal Colour Photosystem case relied upon by Revenue (supra) and the issue was framed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sales tax/VAT and service tax, there is no jurisdictional bar in the levy of service tax as held by the hon'ble apex court in the case of Idea Mobile Communication Ltd. case [2011 (23) STR 433 (SC)] observing that "there might be overlapping, but the overlapping must be in law. The same transaction may involve two or more taxable events in its different aspects. But the fact that there is overlapping does not detract from the distinctiveness of the aspects". 6.3 The decisions of the Tribunal (Delhi Bench) in the case of Speedways Tyre Service and (Chennai Bench) in the case of Safety Retreading Company Ltd. (supra) dealt with identical issue and held that invoices unilaterally raised by the appellants indicating the break-up without s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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