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2019 (3) TMI 817

ed calculation table based whereupon the demand was proposed and subsequently confirmed. Such a calculation is not possible in the absence of the evidence. Further, the documents as that of giving details bifurcating the amount received by the appellant with respect to both kind of services (with and without material) are on record. A perusal thereof shows that the value mentioned for the services with material tallies with the value mentioned in the show cause notice. The said perusal is sufficient enough to hold that the services, which do not include the value of material and on which, the cenvat credit has been availed were not included by the appellant while availing the abatement under the said Notification. The details about cenvat c .....

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ces. - The Department was not entitled to invoke the extended period of limitation. Major portion of demand is, therefore, stands hit by principle of limitation - Appeal allowed - decided in favor of appellant. - Service Tax Appeal No.ST/52839/2018 [SM] - FINAL ORDER NO. 50366/2019 - 8-3-2019 - MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Mr. Pulkit Kapoor, C.A. Present for the Respondent: Mr. K. Poddar, D.R. ORDER PER: RACHNA GUPTA The appellant herein are engaged in Erection, Commissioning and Installation Services and Works Contract Service . They have been accordingly registered. During the course of audit of record of the appellant, the Department observed that the appellant had claimed abatement under Sl. No.5 o .....

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r the Department. 3. It is submitted for the appellant that the appellants are engaged in providing two kinds of services to the telephone operators i.e. the services of creating the foundation of mobile towers, which includes the cost of material as well as the labour, and secondly, the services of technical testing of the transmission of signals from these towers which services do not include the value of material. It is submitted that both the services are unrelated and independent. It has also been brought to the notice that Department earlier conducted two audits i.e. on 15 February, 2009 for the period September, 2007 to September, 2009 and on 2 April, 2013 for the period October, 2009 to June, 2012. No such shortcoming as noticed vid .....

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on behalf of appellant today have duly been considered by the Commissioner (Appeals). A Reasonable finding to each of the said argument has been given. The order has been announced based on the appellants own acknowledgement that the breakup with respect to both kind of services i.e. with material and without material was not possible for the appellant due to the respective format of the return. Hence, the entire value has been clubbed, which was sufficient ground to deny the abatement under Notification No.1/2006, as the availment of cenvat credit on the inputs/ capital goods/ input services is a condition, which restricts the applicability of the said Notification. In view of the said admission of the appellant about availment of Cenvat .....

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ed under the said Notification following three conditions have to be fulfilled:- (1) That the services rendered should be in nature of erection, commissioning and installation. (2) The gross amount charged shall include the value of goods and material supplied/used by the service provider alongwith the cost of the labour for providing the services. (3) The cenvat credit of input/capital goods or the input services should not have been availed. 9. I observe that the adjudicating authority below has denied the benefit for want of evidence for proving the third aforesaid condition by the appellant. The relevant findings are as follows:- I find that the assessee has completely failed to produce/supply documents/evidences to prove that they have .....

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nt under the said Notification. The details about cenvat credit on input services have also been brought to the notice of this Bench. There is no denial on part of Department that the appellants were rendering services of erection, commissioning and installation and there have been the work orders, which include the value of material as well as the labour. With respect to availment of cenvat credit, it is observed that the adjudicating authority has simply relied upon the ST-3 Return for holding that since cenvat credit has been availed one condition for abatement stands not complied with, while denying the benefit of the Notification. But it is the simultaneous acknowledgement that the format of ST-3 Return is very restrictive and there is .....

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tion 73 of Finance Act, 1994 amply clear in permitting extension of period of limitation only in event of fraud, collusion, wilful misstatement, suppression of facts, or any other contravention with intent to evade tax. Interpretational disputes and specifically enumerated situations are mutually exclusive. With introduction and subsequent expansion of credit scheme, inbuilt disincentive present to suppress facts for evasion of taxes/duty. Unlike levy and collection of duty/tax, rules relating to Cenvat credit not only comprehensive but also lay emphasis on record-keeping and maintenance. Declarations in semi-annual returns are adequate defense against allegation of suppression. Availability of information or lack thereof ought not to deter .....

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