TMI Blog2018 (12) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... able value. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. ST/53041/2018 [SM] - FINAL ORDER NO. 53385/2018 - Dated:- 3-12-2018 - MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Ms. Asmita A Nayak Mr. R.K. Ranjan, Advocates Present for the Respondent: Mr. P. R. Gupta, DR ORDER PER: RACHNA GUPTA Present Appeal has been preferred against the Order of Commissioner(Appeals) bearing No. 123 dated 27.06.2018. The appellant herein is engaged in providing Works Construction Services. During the course of audit of the appellant, the Department observed that the appellant received certain amount on account of mobilisation advances from the service recipient M/s Today Home ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween the two vide which the service provider and the receiver agreed for finalisation of the initial agreement with the payment only to the extent to which the services were provided however the amount of one crore as was paid by the recipient on account of mobilisation amount since was already withdrawn by him, the amount of running bills to the extent of 15 lakhs got adjusted and the balance of 85 lakhs was acknowledged to have been returned to the recipient. 3.1 Ld. Counsel has impressed upon the letter dated 11.09.2015 vide which the appellant informed Union Bank of India (the guarantor) about the withdrawal of said ₹ 1Cr. vide five bank guarantees of ₹ 20 lakh each of mobilisation amount and the bank has acknowledged re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) has been specific enough while holding that there has been no documentary evidence even in the form of the correspondence between the appellant and M/s Today Homes Infrastructure which may prove that the work order has been cancelled by M/s Today Homes Infrastructure Ltd. Resultantly, the appellant s argument that they have no liability against ₹ 85,00,000/- received by them as mobilisation amount does not hold good in the facts of the case. The Order under challenge is therefore correct; Appeal is prayed to be dismissed. 5. After hearing both the parties and perusing the entire record, I observe and hold as: Initially there was an agreement between the appellant and M/s Today Homes Infrastructure Ltd for providing cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... qua the remaining 85 lakh of the withdrawn mobilisation amount. It is also an admitted fact that liability of ₹ 13,94,622/- alongwith the interest has already been paid and that ₹ 4,20,240/- as demanded is the liability qua the said 85 lakhs. Commissioner(Appeals) while confirming the said liability towards ₹ 85 lakhs, of the service provider has ignored, despite acknowledging, the withdrawal thereof as subsequent event. 7. The said settlement agreement though has been acknowledged however has been refused to be admissible for want of the date of the said agreement. Date of issue of stamp paper for the said agreement is considered towards alleged malafide on part of the appellant with respect to the adjustment of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he service becomes taxable service, is only liable for service tax. Similarly, when payment is received in advance for services to be provided by subsequently the services are not actually provided, then in such cases service tax paid is liable to be refunded. 8. Seeing in view of the said settled provision of law, I hold that Commissioner (Appeals) has committed an error while ignoring the relevant piece of evidence as that of agreement just for want of date thereupon. He also ignored the affidavit in this respect and even the bank acknowledgement corroborating the subsequent event of withdrawal of the entire mobilisation amount of ₹ 1Cr., however with adjustment of ₹ 15 lakhs. Thus, the amount of ₹ 85 lakh cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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