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TMI Blog2015 (6) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of Rs. 1,53,14,782/- for the period 2006-2007 to 2010-2011 apart from interest under Section 75 and penalties under Section 77 and 78, while dropping penalty under Section 76 of the Finance Act, 1944. Heard the respective parties. 2. Proceedings were initiated by a show cause notice dated 21/10/11. The show cause notice and the impugned adjudication order are vitiated by incoherence and vagueness, to which aspect we shall advert to in some detail, later herein. 3. The show cause notice asserts that : (a) the appellant was registered for providing Works Contract Service, taxable under Section 65 (105) (zzzza) of the Act ; (b) that information was gathered by the Anti-Evasion Branch, Delhi which revealed that the appellant was engaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s but failed to remit the tax due. 4. In para 8 of the show cause notice, which we consider critical to the validity of the show cause notice, it is stated :- "8. Whereas from the documents submitted by the party it appears that they have rendered the taxable services which may either be classified under Management, Maintenance or Repair service or Erection, Installation and Commissioning services and other construction linked services as defined under the Finance Act, 1994 (emphasis added). 5. After extracting the definition of Management, Maintenance and Repair services and setting out contents of the Board Circular dated 27/7/05 and definition of Erection, Commissioning or Installation service in para 9, para 10 observes that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assertion proposing to levy and collect service tax on the basis of any specified taxable services allegedly rendered by the appellant except the several alternative taxable services speculated to have been proved and set out in para 8 (supra). 7. In response to the show cause notice, appellant submitted a reply on 30/12/11 inter-alia pleading that all contracts executed by it were registered as works contracts which are also assessable to VAT; that since the contracts were works contracts involving deemed sale of goods, exclusion of the value of the goods, either under Notification No. 12/03 dated 20th June, 2003 or abatement of 67% of the value, under Notification No. 01/06 dated 1/3/06 or under the composition scheme provided in Works ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability to tax and setting out at Sl. No. (v) that certain services which do not fall under the category of construction of complex but could be liable to tax would be in respect of receipt of Rs. 84,28,830/-, which were in respect of works contract services. Shri Batra, the learned Consultant would submit that on this consideration, after availing abatement benefits of 67% of the value, service tax of Rs. 3,00,442/- was remitted on 26th April, 2013, after the impugned order was passed and the present appeal preferred. We are recording this fact only to complete the narrative. 9. The impugned adjudication order is drafted in 32 paras spread over 22 printed pages. Paragraphs 1 to 17 reiterate almost verbatim, the contents of the show caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Para 31 abruptly jumps to the conclusion, without any preceding analysis nor a finding as to the specific taxable services provided by the appellant, that service tax of Rs. 1,53,14,782/- is recoverable under the proviso to Section 73 (1) of the Act alongwith interest, excluding penalty under Section 76. Para 32 records the operative portion of the order declaring the specified liability to service tax, interest and penalties. 10. It is a axiomatic that a best judgment assessment under Section 72 could only be for ascertaining the quantum of the tax liability, in a context where the actual extent of liability cannot be determined with methematical precision on account of non-availability of relevant documents or financial records. There c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided copies of 20 work orders executed in relation to CWG Projects, particulars of which are set out in a tabular form in para 5 of the show cause notice. From the description of the works in this table, officers could have classified the several works into the appropriate taxable service which may appropriately govern rendition of these services. In any event officers are not handicapped and the Act provides ample powers including of search under Section 82 of the Act to obtain information necessary to pass a proper, disciplined and legally sustainable adjudication order. The disinclination to employ the ample investigatorial powers conferred by the Act is illustrative of gross Departmental failure and cannot afford justification for passi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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