TMI Blog2019 (11) TMI 1274X X X X Extracts X X X X X X X X Extracts X X X X ..... m and the ISL was a composite contract. Similarly, the appellant has not produced any document before the Adjudicating Authority to substantiate his submissions. The authorities below have rightly held that no material has been placed on record by the appellant to bifurcate value and nature of work and therefore tax has been imposed on the gross value, which cannot be said to be erroneous - The burden to proof that which part of his work amounts to 'service' and which not, was upon the appellant and not on the revenue, which the appellant utterly failed to discharge. The work cannot be artificially split. As the appellant has not produced any document even to prove the facts pleaded in reply to show cause notice, therefore, no question of law much less any substantial question of law is involved in this case warranting interference by this Court in exercise of its appellate jurisdiction - appeal dismissed. - TAXC No. 17 of 2018 - - - Dated:- 20-11-2019 - Hon'ble Shri P. R. Ramchandra Menon, CJ And Hon'ble Shri Parth Prateem Sahu, J For the Appellant : Mr. Neelabh Dubey, Advocate For the Respondent : Mr. Maneesh Sharma, Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10.2010 a show cause notice was issued by the Additional Commissioner, Customs Central Excise, Raipur to appellant calling upon him to explain as to why service tax of ₹ 6,92,606/- and education cess amounting to ₹ 13,534/- should not be demanded and recovered from appellant. 3. Appellant submitted reply to the said show-cause notice stating that the appellant had not provided any service classifiable and taxable under the Act of 1994. The contract entered between the appellant and the ISL is a composite contract. It was also stated that earlier the appellant was registered with Service Tax Department, but subsequently the appellant surrendered its service tax registration on 16.1.2009. It was also stated that while assessing tax value in the showcause notice, the Revenue erred in not considering that the appellant is entitled for abatement of 67% on value available vide Notification No.18/2005/ST dated 7.6.2005. Thus, the appellant prayed for dropping of proceeding/notice issued. 4. The Adjudicating Authority after considering the reply and also hearing the appellant, arrived at a conclusion that award of contract by the ISL to the appellant is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to approach this Court by filing appeal under Section 35G of the Central Excise Act, 1944. 6. Mr. Neelabh Dubey, learned counsel for appellant submits that the appellant had obtained service tax registration on 15.11.2006 but considering that the work/service which the appellant was rendering at the relevant point of time, was not falling within the purview of ' taxable service', has surrendered the registration vide letter dated 5.1.2009, which was received by the jurisdictional Range Officer on 16.1.2009. He further submits that no service tax is payable for the work contract because it was a 'composite contract' from beginning to end. He also submits that the authorities failed to consider that abatement of 67% on the value was denied to the appellant. He also submits that in the show-cause notice there is no specific mention that which part of the work amounts to 'service' and which comes within the category of 'sale of goods'. He also submits that charging sections under the taxing statute are to be construed strictly and it is for the revenue to bring its case within the definition of 'taxable service'. 7. Mr. Mane ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant and the ISL, which the appellant failed to bring on record. In absence of contract agreement on record, the claim of the appellant that he is entitled for abatement of 67% on value available as per Notification dated 1.3.2006 is not sustainable. There was no material before the authorities to accept the submissions of appellant that the contract entered between him and the ISL was a composite contract. Similarly, the appellant has not produced any document before the Adjudicating Authority to substantiate his submissions. The authorities below have rightly held that no material has been placed on record by the appellant to bifurcate value and nature of work and therefore tax has been imposed on the gross value, which cannot be said to be erroneous. The burden to proof that which part of his work amounts to 'service' and which not, was upon the appellant and not on the revenue, which the appellant utterly failed to discharge. The work cannot be artificially split. It is to be considered on several elements based on it essential features. The course adopted for charging, invoicing or accounting does not by itself determine that the service provided is a single s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... looring, Building, Extension Work, Kiln III Control Room, TG Control room, Water Tank, MCC Room Kiln, Repairing Works done by the appellant in relation to construction of hostel , quarter and temple is ancillary activities to major transaction of Industrial Construction. Hence, the appellant's contention that they have not provided any taxable service with reference to construction of hostel, quarter and temple is not sustainable under the facts and circumstances of the case. Thus, the appellant is liable to pay service tax under the category of 'commercial or industrial construction' service on the whole transaction entered with the Ind Synergy Ltd.. The gross payments released to the Appellant against the construction services provided by them which are rightly classifiable under the category of 'Commercial or Industrial Construction services' on which they had failed to pay service tax. Thus amounts received by the Appellant for the above civil construction works are taxable on which service tax is to be paid along with interest. Held accordingly. 4.6. The Appellant has also contested in its grounds of appeal that, the department has erred in asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no evidence that the appellant had ever approached to the department and inquired about the liability of his activity. This handicaps to grant any immunity from penalty for the suppression of fact made to the department and contravention of law made cautiously. Thus I do not find any reasonable cause on the part of the appellant to grant it immunity under Section 80 of the Act. Thus I find that, appellant is liable for imposition of penalty for deliberate suppression of vital facts with an intent to evade payment of service tax. Thus, I do not find any infirmity in the impugned order imposing penalty under Section 77 78 of the Finance Act, 1994. Held accordingly. 11.For the foregoing discussions and reasons given in the impugned order, we do not find any illegality or infirmity in the orders passed by the authorities below. As recorded earlier that the appellant has not produced any document even to prove the facts pleaded in reply to show cause notice, therefore, we are of the opinion that no question of law much less any substantial question of law is involved in this case warranting interference by this Court in exercise of its appellate jurisdiction. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
