TMI Blog2015 (11) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax is leviable only on those aspects amounting to rendition of service and excluding deemed sale of goods. Whether the appellant had in fact provided the works contract service is of course a question of fact. It is so asserted in the appeal for the first time but has not been so asserted or pleaded before the adjudicating authority. Since the appellant has wholly failed to cooperate in the adjudication proceeding by non-cooperation and thereby disabled the ld. Commissioner to properly discharge his statutory functions, to pass a well considered order of assessment and since such non-cooperation of the appellant had resulted in substantial waste of public money involved in the primary adjudication proceeding as well as the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings were initiated on the basis of an investigation by the Anti-Evasion Branch. The appellant failed to cooperate either during the process of investigation or during adjudication. Appellant neither furnished documents nor responded to the show cause notice or the summons issued. In the circumstances, Revenue obtained information from Income Tax Authorities and verified balance sheet and income tax returns of the noticee for the periods 2004-05 to 2007-08. Balance sheets for the subsequent period under consideration could not however be obtained since the appellant did not file income tax returns for the subsequent periods No information was therefore available to Revenue to assess in actual turnover and the actual consideration recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts for the entire period in issue; that works contract is not taxable prior to 1.6.2007 in view of the Judgment of the Supreme Court in C.S.T. vs. Larsen Toubro 2015 (39) STR 913; that the actual consideration received for rendition of works contract service for the period subsequent to 1.6.2007 (admittedly taxable as WCS) is now available and is now furnished, in the present appeal; that 100% increase assumed in the impugned order on best judgment basis is irrationaland not on relevant parameters; that in fact no consideration was received during 2010-11 to 2011-12; that the appellant in any event would be entitled to the benefits of the composition scheme or for exclusion of the value of the goods deemed to have been supplied as integ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the adjudicating authority. 9. In the totality of the facts and circumstances, we consider it appropriate to remit the matter to the adjudicating authority. We do so by setting aside the impugned order but on stringent terms as to costs. We set aside the impugned order since service in adopting the best judgment assessment method for arriving at the appellant s turnover for the period 2007-08 to 2011-12, which in the circumstances the adjudicating authority was entitled to do (on account of non-cooperation of the appellant), the ld. Commissioner nevertheless adopted no rational basis for assuming that the turnover increase in each year subsequent to 2006-07 would be 100%. We notice that the turnover of the appellant during 2004-05 (t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rks executed during 2004-05 to 2011-12; plead all relevant aspects that the appellant chooses, including pleas as to its immunity to the levy and collection of tax; the non-leviability of works contract to service tax prior to 1.6.2007; and other pleas with regard to any entitlement to exclusion of the value of the goods incorporated in works executed by it, whether on the basis of value or on the basis of composition or abatement schemes and any other defences as it desires. All submissions along with relevant supporting documents shall be furnished to the adjudicating authority within 30 days from the date of receipt of this order and after remitting the costs as ordered. If the appellant submits its response along with any supporting doc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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