TMI Blog2014 (5) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... h year would be within the exemption limit prescribed under Notification No. 6/2005-S.T. However, on going through the impugned order, we find that in para 6.1 of the order, the Commissioner (Appeals) had given a categorical finding that the appellant have not disputed that their service to railways falls under the category of “erection, installation and commissioning service” and their main contention is that the same is not taxable as the service has been provided to the railways. In the impugned order, the appellant’s contracts with the railways have nowhere been analyzed for ascertaining as to whether the contracts were providing erection, installation and commissioning service or otherwise. In view of this, the impugned order is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner vide order-in-original dated 16-3-2010 by which the service tax demand, as made in the show cause notice, was confirmed along with interest and beside this, while penalty of Rs. 7,25,226/- was imposed under Section 78 of Finance Act, 1994, penalty of Rs. 25,000/- was imposed under Section 77 ibid. No penalty was imposed under Section 76 as the penalty under Section 78 had already been imposed. Against this order of the Assistant Commissioner, both the department as well as the appellant filed appeals before the Commissioner (Appeals). The department filed appeal before the Commissioner (Appeals) for imposition of penalty under Section 76 and the appellant filed appeal before the Commissioner (Appeals) against confirmation of service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indivisible contracts could not be vivisected to tax service component thereof, that activity of the appellant during the period of dispute was not taxable, that even if the appellant s contract with railways are vivisected for levy of service tax, on the value of taxable services, after deducting the value of supply items, value of pumping of water and boring of tube wells and value of erecting structures, would be very small and below Rs. 4,00,000/- during each year, for which full service tax exemption under Notification No. 6/2005-S.T., dated 1-3-2005 would be available, that when there is no service tax liability, there is no question of penalty on them under Sections 76, 77 78 of the Finance Act, 1994 and that in view of this, the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... installation and commissioning service and their main contention is that the same is not taxable as the service has been provided to the railways. In the impugned order, the appellant s contracts with the railways have nowhere been analysed for ascertaining as to whether the contracts were providing erection, installation and commissioning service or otherwise. In view of this, the impugned order is not sustainable. The same is set aside and the matter is remanded to the Commissioner (Appeals) for de novo decision after hearing the appellant and examining their contracts with the railways. The Commissioner (Appeals) in course of de novo proceeding must give a clear finding as to whether - (a) the appellant s contracts with railways were in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
