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2015 (5) TMI 636 - CESTAT MUMBAI

2015 (5) TMI 636 - CESTAT MUMBAI - TMI - Admissibility of CENVAT credit - Penalty u/s 78 - non inclusion of value of steel, cement and other materials received free of cost by respondent from their customers while arriving at the value of construction service for payment of service tax on the construction services provided by them - Held that:- Issue of inclusion of free material provided to the service provider by the customer and computation of value thereof for the purpose of payment of servi .....

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le under Section 78 because show-cause notice was not required to be issued under Section 73(3) as no mens rea for wilfull suppression of facts has been established. Therefore, refund of ₹ 2,75,255/- should be granted.

As regards the interest of ₹ 1,94,084/- on the service tax demand of ₹ 9,42,920/-, we have already set aside the demand. Therefore the interest of ₹ 1,94,084/- paid by appellant merits refund - Decided against Revenue. - Application No. ST/MA(Ors .....

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he case of M/s. B.M. Constructions, Aurangabad. Miscellaneous application bearing No. ST/MA(Ors)1883/10 is also filed by Revenue in respect of first Order-in-Appeal seeking to include additional grounds of appeal. 2. As the issue is common, all the appeals are taken up together. 3. The issue relates to admissibility of CENVAT credit on three counts viz. (i) non inclusion of value of steel, cement and other materials received free of cost by respondent from their customers while arriving at the v .....

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osed equivalent penalty (total ₹ 11,01,017/-) under Section 78 with option to pay 25% of the penalty in terms of proviso to Section 78 and penalty of ₹ 1000/- under Section 77. The Commissioner (Appeals) set aside the demand and corresponding interest as far as first issue is concerned as well as total penalty under Section 78. He confirmed the remaining duty, interest and penalty under Section 77. 4. As far as the first issue is concerned, Commissioner (Appeals) held that the servic .....

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t charged and gross amount must include the cost of all material used. According to Revenue, Notification 15/2004 requires two conditions to be fulfilled namely (i) asseessee should not have availed CENVAT credit on inputs/capital goods (ii) no benefit should have been availed under notification 12/2003-ST dated 20.06.2003 which exempts the value of service equal to the value of goods and materials sold by the service provider to the recipient of service. 4.1 In the first appeal against Order-in .....

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line we follow the above decision and reject the appeal of the Revenue on this matter. The corresponding penalty is, consequently, also set aside. 4.2 On the other two issues, Commissioner (Appeals) upheld the demand with interest but set aside the penalties. 5. In their additional grounds in miscellaneous application, Revenue prayed that simultaneous imposition of penalty under Section 76 and 78 was discontinued with effect from 10.5.2008 in terms of Section 78(5). The period involved in the in .....

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