9911796707
TMI Blog2021 (10) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... owing order:- i) Order denying abatement under Notification No. 1/2006-ST dated 01.03.2006 is set aside and abatement allowed. ii) Regarding assessment under Works Contract service, matter remanded to the adjudicating authority." (Emphasis added) 2. The appellant filed an application for rectification of mistake in regard to the second issue which was remanded by the Tribunal. The application for rectification of mistake was dismissed. One of the contentions raised by the appellant in the said application was that although the Tribunal has passed the above Final Order, the co-ordinate Bench of the Tribunal in the case of M/s. Vaishno Associates v. C.C.E. & S.T., Jaipur-I reported in 2018-VIL-217-CESTAT-DEL-ST had held that the non-int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee. 11. The failure on the part of the learned Tribunal to do so resulted in miscarriage of justice and unnecessary litigation brought before this Court firstly in the form of writ petition, which upon the objection raised from the side of the Revenue, which also cannot be appreciated much, had to be converted into a regular appeal under the provisions of Section 35G of the Act. 12. Therefore, we are inclined to allow the present appeal of the Assessee and set aside the order of the learned Tribunal to the extent of paragraph 8(ii) of the impugned order quoted above dated 01.06.2018. Consequently, the entire ROM dated 07.08.2018 is also set aside. We remit back the matter to the learned Tribunal with a request to pass fresh orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling the intimation opting to pay service tax under WCS, the demand cannot sustain. Similar view was taken in Bridge & Roof Co. Ltd. Vs. CCE, Jaipur [2018-TIOL-30-CESTAT-DEL]. Further in the cases of ABL Infrastructure Ltd. cited supra and Mehta Plast Corporation cited supra also, it has been held by the Tribunal that substantial benefit cannot be denied for procedural deficiency of delay in opting for WCS." (Emphasis added) The Learned Counsel for the appellant prayed that the appellant may be allowed to pay Service Tax under reduced rate as per the composition scheme. 4.1 The Learned Authorized Representative Shri Vikas Jhajharia appeared for the Department. He adverted to paragraphs 25 to 38 of the impugned order. It is submitted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 4.2 Learned Authorized Representative for the Department adverted to paragraph 27 of the impugned order to submit that the Commissioner has discussed that the appellant has vivisected the service portion itself and classified one portion under erection and commissioning and the other portion as works contract and availed concessional rate under the composition scheme without fulfilling the conditions mentioned for availing the same, viz. by not including the value of plant and machinery supplied. So also, that the appellant did not exercise the option to the Department for the scheme prior to payment of Service Tax or seeking registration under Works Contract. That in paragraph 28, it is noted by the Commissioner that the taxpayer has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Kunnel Engineers and Contractors (supra). We therefore have no hesitation to hold that the non-intimation of availing the composition scheme is only a condonable lapse and that appellant has to be allowed to pay Service Tax under the composition scheme for Works Contract Services. 7.2 We make it clear that we do not interfere with the taxable value mentioned in the Annexure to the Show Cause Notice dated 20.10.2009. The appellant is liable to pay Service Tax on such taxable value, however, at the reduced rate under the composition scheme. 8. In the result, the impugned order is modified to the extent of allowing the appellant to pay the Service Tax under the composition scheme, as discussed above. The issue is found in favour of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
