TMI Blog2018 (6) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... be under "Commercial or Industrial Construction Service". The demand confirmed by the Original Authority to the tune of ₹ 13,71,473/- under the provisions of Section 73A of the Finance Act, 1994 is not sustainable since the same has travelled beyond Show Cause Notice. Further, the Service Tax cannot be demanded on the goods but it can only be demanded on service and therefore, the demand of Service Tax to the tune of ₹ 14,61,137/- is not sustainable. Appeal dismissed - decided against Revenue. - APPEAL No. ST/56332 & 55948/2013-CU[DB] - ST/A/70836-70837/2018-CU[DB] - Dated:- 2-4-2018 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Pawan Kumar Singh, Superintendent (AR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and appellant - M/s Padam Chand Co., was also to show cause as to why penalty should not be imposed. M/s Padam Chand Co. had submitted their reply dated 22/01/2012 to the said Show Cause Notice M/s Padam Chand Co. explained their activity as follows Their main activity was construction of houses for Sugar Mills and that their labours used to work at the sites and running bills used to be prepared after measurement of the job already completed. Such measurements were done by the Site Supervisor in the presence of Engineers of Customer Company . They further submitted that initially they obtained the registration for payment of Service Tax. Further, through letter dated 11/06/2007 received from M/s Balrampur Chini Mills, they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 14,61,137/- (Fourteen Lakhs Sixty One Thousands and One Thirty Seven only) and the demand for balance amount of ₹ 1,53,29,601/- is liable to be dropped as the same is not sustainable under law. The Noticee have already paid Service Tax amounting to ₹ 17,29,072/- as also detailed in the Notice, but have retained Service Tax amounting to ₹ 13,71,473/- as reported by the Assistant Commissioner (Prev.) vide his letter dated 21.03.2012. they are not permitted to retain the Government money which is recoverable under provision of Section 73A of the Act. The amount of ₹ 17,29,072/- deposited by the Noticee is also liable for appropriation to the Government Account. 3. Aggrieved by the said order present two a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recipients were commercial concerns and therefore, it should be treated as Commercial or Industrial Construction Service . Further, Revenue has also raised another ground saying that alternatively it should be treated as Residential Complex Service . 6. Having considered the rival contentions and on perusal of the facts on record, we find that the demand confirmed by the Original Authority to the tune of ₹ 13,71,473/- under the provisions of Section 73A of the Finance Act, 1994 is not sustainable since the same has travelled beyond Show Cause Notice. Further, we find that Service Tax cannot be demanded on the goods but it can only be demanded on service and therefore, the demand of Service Tax to the tune of ₹ 14,61,137/- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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