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2017 (11) TMI 1182

essary to complete the repairing service - Department, however, took the view that the activity undertaken by the appellant was in the nature of service covered under the heading 'management, maintenance or repair service' - Held that: - such activity cannot be considered purely as sale of repair materials but is an activity covered under sec 65 (105) (zzzg) under the heading ‘management, maintenance of repair service’ - demand upheld. - Benefit of N/N. 12/2003–ST dated 1/3/2006 - the benefit is available only subject to satisfaction of conditions specified therein. One of the conditions is that the assessee should be in possession of documentary evidence indicating of value of goods/materials sold along with the provision of service. F .....

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the appellant also performed the incidental activity of fixing the footwear by carrying out the process of replacement of defective material with a new material. Accordingly, the appellant submitted that the transaction is a sale transaction and no Service Tax is liable to be paid. 3. The Department, however, took the view that the activity undertaken by the appellant was in the nature of service covered under the heading management, maintenance or repair service falling under Section 65 (105) (zzzg) of the Finance Act, 1994. readwith Section 65 (64) ibid. Accordingly, show cause notice dated 24/10/11 was issued to the appellant and the impugned order was passed confirming the demand of Service Tax amounting to ₹ 46,53,610/- along wi .....

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out of the total value of consideration received, 75 per cent will be excludable on account of supply of material and Service Tax will be payable on 25 per cent of the total consideration received. 6. The Ld. DR justified the impugned order. He submitted that if the appellant had paid VAT on the full value by mistake, that doesn t justify non-payment of Service Tax. He argued that the activity performed is in the nature of repair services and service tax will be liable to be paid. He also added that the appellant will not be eligible for benefit of Notification No.12/2003 for failure to satisfy the conditions specified therein. 7. We have heard both sides and perused the record. The appellant is in the business of footwear. They have also u .....

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ould be in possession of documentary evidence indicating of value of goods/materials sold along with the provision of service. Further, no Cenvat Credit of duty in respect of such goods and materials should have been availed. The Adjudicating Authority has recorded the finding that the appellant has failed to substantiate that they have fulfilled these conditions. They have also not placed any evidence to justify the benefit of notification as above. Consequently, we find no reason to interfere with the finding of Adjudicating Authority that the appellant is labile to pay Service Tax on the consideration received as well as will not be tangible for benefit of Notification No. 12/2003-ST. 10. The appellant also advanced the argument that the .....

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