TMI Blog2014 (9) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... le goods to petrol pumps for executing the contract. No proof other than the value of excisable goods arrived at by the excise authorities will be required in respect of such items for the purpose of Notification No. 12/2003-ST. If there is proof in respect of bought out items supplied by the appellant it is for the appellant to submit such proof. Very nature of this case would justify extension of Cenvat credit of excise duty to be paid on goods manufactured if the appellant is not intending to avail of benefit of Notification No. 1/06-ST and 32/07-ST. Which course will be beneficial to the appellant will be known only on determination of the excise duty liability which is yet to be determined finally. The appellants have a plea tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of excise duty on the fabricated items as also service tax on the activities of installation of such elements. In the case of the present appellant itself there was another proceedings in which the excise duty liability on the fabricated items was under dispute. The order confirming the demand for excise duty in the case of this appellant has been recently set aside in order dated January 11, 2012 by the Tribunal in Appeal No. E/1421/2011 of de novo consideration of issues like whether the items on which duty is demanded emerged as excisable goods before its installation and whether the value on which duty was demanded was the correct value of the excisable goods if any, etc. The present appeal is against an order confirming service tax i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services during the period 2006-07 and 2007-08 which has not been taken into account in the impugned order. The main contention of the appellants is that the entire matter was known to the Department and therefore extended period of time cannot be invoked for issue of notice for the demand and hence the demand is timebarred. Further they also plead that since they had a bona fide belief that their activity was not liable to be taxed there is no case for imposing penalty on them. Further they contest that they are eligible for exemption under Notification No. 12/2003-ST and if the exemption is extended the demand will work out to be much lower. They also submit that since the value of excisable goods sold is remanded by the Tribunal fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (b) which needs to be considered because clause (b) deals with deemed sale in a works contract. We also note that CBEC itself has acknowledged the position that deemed sale defined in article 366(29A) of the Constitution will constitute sale for the purpose of levying service tax, as seen from para 2.5.7 of Draft Guidance Paper A of the instruction issued regarding changes proposed in the budget of 2012-13. We are also not in agreement with the contention that for claiming exemption under Notification No. 12/2003-ST the invoice should indicate the value of the goods sold separately. The said notification reads as under: In exercise of the powers conferred by section 93 of the Finance Act, 1994 (32 of 1994), the Central Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taneously. The appellants have a plea that they have been paying service tax and filing regular service tax return and that the facts were known to the Department and hence there cannot be a charge of suppression against them. Actually the relevant question is whether the appellants have disclosed the correct value of the service rendered by them. The knowledge of the Department that the appellant was providing this service is not relevant to the issue whether value was declared correctly. Since this matter is being remanded to for de novo decision we direct the adjudicating authority to examine the submissions of the appellant on the plea of time-bar and give his finding. When the matter was considered in the light of all the aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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