TMI Blog2019 (4) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... and even raised revised taxable invoices to their customers. Hence, the issue may be examined in totality and a well reasoned order be passed after providing opportunity to the appellants to justify their claim that the said services were in respect of immovable property or not. The matter is remanded back to the Original Adjudicating Authority with the directions that the case may be decided afresh after affording a reasonable opportunity to the appellant to produce all the documents in support of their arguments and decide the matter - appeal allowed by way of remand. - Service Tax Appeal No. 814 of 2010 - Final Order No. 50511/2019 - Dated:- 8-4-2019 - Shri C.L. Mahar, Member (Technical) And Ms. Rachna Gupta, Member (Judicial) S/Shri Sujit Ghosh, Shashank, Aryadeep Roy and Shekhar, Advocates for the appellant. Shri Amresh Jain, Authorized Representative (DR) for the Respondent. ORDER Per. C.L. Mahar :- Briefly stated facts are that the appellant were appointed as a contractor for preservation and maintenance of the properties of Dhabol Power Company (herein after referred as the DPC ) under orders of a Court Receiver appointed by the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charged and received during the period July, 2003 to December, 2005 works out to ₹ 72,68,97,135/- and liability of Service tax as applicable during the relevant period works out to ₹ 6,40,33,042/- and Education Cess of ₹ 6,94,395/-. The appellant has deposited an amount of ₹ 4,80,12,417/- against their service tax liability. Regarding the differential amount between service tax amount of ₹ 6,40,33,042/- demanded in the impugned show cause notice and the amount of ₹ 4,80,12,417/- it was claimed that the differential amount which was a deduction claimed by the appellant from the total taxable amount of ₹ 72,68,97,135/- on account of raw materials and other consumables used in the providing of service was not admissible as the appellant had not shown it separately in the invoices which was required in terms of CBEC Circular No. 59/8/2003 dated 20/06/2003. That to avail the benefit of abatement appellant are not entitled for the benefit under Notification 12/2003-ST dated 20/06/2003 of value of raw materials/goods used in providing the impugned service, the provisions of the CBEC Circular dated 20/06/2003 were required to be followed. In reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in as much as the same was provided with respect to the immovable property whereas the service tax under Section 65(64) prior to 16/06/2005 was levied on maintenance of repair of goods and equipment and he vehemently claimed that their service of 'Preservation and Maintenance' of the properties of DPC covered the power plant phase I II, LNG Terminal, Jetty, Naphtha, Single Point Mooring, housing complex etc. was only with respect to immovable property and not with respect to goods and equipment . He further claimed that even though they had discharged tax of ₹ 4,80,12,417/- for their liability prior to 16/06/2005 during the course of investigation bonafidely believing that their service was liable to tax, but there was no estopple to claim this benefit subsequently as decided by the Hon ble Supreme Court in the case of Share Medical Care vs. Union of India (2007 (209) E.L.T. 321 (S.C.)] wherein it was held that if an applicant does not claim benefit under a particular notification/provision at the initial stage he is not debarred, prohibited or estopped from claiming such benefit at a later stage. He argued that the learned Commissioner has mechanically held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be construed that mere terminology like 'equipments', used in the Contract shall not be the determinative factor for deciding the nature of a property and it is imperative that a proper examination of facts need to be conducted. In the instant case, a perusal of the contract, the show cause notice, the reply and the order-in-original leads to the inevitable conclusion that the properties of DPC were nothing but immovable in nature. He vehemently argued that adjudicating authority has given a non-speaking, vague and cryptic order without providing any reasonable basis to justify the properties of DPC as goods or equipment. He further stated that prior to 16/06/2005, maintenance or repair service provided to immovable properties was not leviable to service tax. Therefore, the Appellant cannot be saddled with a service tax liability till l6/06/2005. Reliance in this regard has been placed on the ruling of this Tribunal in the case of Industrial Engineering Systems vs. Comm. Of Central Excise, Vizag [2016 (46) S.T.R. 755 (Tri-Bang)] wherein it has been held that service tax cannot be levied in cases where services had been provided to immovable properties prior to 16/06/2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipro GE Medical Systems vs. Commissioner of Service Tax [2009 (14) S.T.R. 43 (Tri.-Bang.)] to claim that the cost of raw materials was to be deducted to arrive at the taxable value. 5. He submitted that the appellant had produced proper documentary evidences in the form of invoices and Chartered Accountants Certificate, however the learned Commissioner had chose to deny the benefit of reducing the taxable value to the extent of value of goods, only on the ground that there was no proper bifurcation of supply of goods compound in the invoices. In this regard, it has been submitted that there is no requirement under law to bifurcate the sale of materials. Producing just and proper documents is enough to take the benefit provided to them by law. He also argued that both Vat and Service Tax cannot be charged on the same transaction. As the appellant had already discharged VAT on the materials consumed in providing the contracted service, the same were not liable to be included in the taxable value under Service Tax. 6. He also argued that extended period is not invocable in the facts of the present case as the appellant paid service tax from 31/12/2004 itself after being intimat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they agreed that the services of asset preservation and maintenance works is nothing but maintenance and repairs, which are taxable services under service tax w.e.f. 01/07/2003. Moreover, payments have been made only when the inquiry was initiated by the Department. I do not agree with the contention of the assessee that they had quantified the amount on the basis of the invoices issued for the purchased items. The assessee submitted the copies of the invoices and the certificate issued by the Chartered Accountant that these goods were purchased by the assessee and utilized by them for the repair and maintenance services rendered to DPC. I find that the certificate issued by the chartered accountant tally with the figures shown in the SCN at para 6.1 that the assessee supplied the said material as per invoices. Later on assessee issued the Revised Invoices which are not co-related with the certificate issued by the chartered accountant. Moreover, in the Revised Invoices the assessee has not mentioned the item/material sold/utilized to DPC and also not mentioned about the VAT/Sales Tax in the said Revised invoices. The contention of the assessee that their services have been p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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