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TMI Blog2022 (5) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax to the tune of Rs.37,13,668/-. 2. A show cause notice dated 19.12.2014 was issued to the appellant seeking inter alia to reject the declaration filed by the appellant; demanding duty of Rs.37,13,668/- along with interest; and seeking to impose penalties under sections 76 & 78 of the Finance Act, 1994 [the Finance Act ]. 3. The show cause notice was adjudicated by Order-in-Original dated 29.02.2016/ 02.03.2016 [the impugned order]. The Commissioner, while accepting the declaration and appropriating the amount declared and paid by the appellant under VCES, confirmed the demand of service tax of Rs.3,64,587/- along with interest and imposed penalties of Rs.2,76,013/- and Rs.20,000 under sections 78 & 70 of the Finance Act respectively. 4. Shri Vijay Kumar, learned counsel appearing for the appellant submits that there are factual errors in the demand confirmed; while in paragraph 34, the Commissioner mentions that the amount declared is Rs.1,29,744/-, a demand of Rs.3,64,587/- has been confirmed for the said period. Learned counsel for the appellant submits that Commissioner observed in paragraph 34 of the Order that the appellant was registered for Works Contract Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Central Excise & Customs, Patna vs. Advantage Media Consultant [2008 (10) STR 449 (Tri.-Kol.)] upheld by Commissioner vs. Advantage Media Consultant [2009 (14) STR J49 (SC) ]; (ii) P. Jani & Company vs. Commissioner of Service Tax, Ahemdabad [2010 (20) STR 701 (Tri.-Ahmed.)]; (iii) Spandana Spoorthy Financial Limited vs. Commissioner of Central Excise & Service Tax, Hyderabad-IV [2016 (45) STR 265 (Tri.-Hyd.) ]; and (iv) ICICI Econet Internet & Technology Fund vs. Commissioner of Central Tax, Bangalore North [2021 (51) GSTL 36 (Tri.-Bang.) ]. 7. Learned counsel also submits that Commissioner observed that the services rendered by the appellant in construction of a road are not eligible for exemption as the same is a link road for private use; that services for laying the road were provided with other work and the value of services was not separately worked out; these services are not covered in the exempted services. Learned counsel submits that the appellant while making the declaration under VCES considered construction of road under civil construction services; the exemption is available for whatever purpose the road is built; therefore, denial of exemption is inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner holds that differential amount of Rs.1,29,744/- is recoverable from the declarant, he proceeds to confirm the amount of Rs.3,64,587/-. 13. The Commissioner in paragraph 34 of the order arrived at the differential duty payable by way of a Chart and finds that:"I also hold that the differential amount of Rs.1,29,744/- is recoverable from the declarant under section 73 of the Finance Act, 1994 read with Section 111 of Finance Act, 2013." However, he has confirmed an amount of Rs.3,64,587/-. The appellant has given a calculation sheet to show the differential duty payable for different years from 2008-09 to 2011-12. The adjudicating authority has not considered these submissions. There is also an inherent contradiction in the calculation and findings by the adjudicating authority. 14. Learned authorized representatives for the Department have submitted a calculation showing that the duty was correctly demanded. The same does not find mention or elaboration in the impugned order. There are, therefore, either calculation errors and/or the amount has not been properly explained while confirming the demand. 15. Coming to the classification of the service tax payable by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Services defined under Section 65(64) of Finance Act, 1994". 16. The appellant claims that Commissioner has given a finding that the activities undertaken by the appellant come under "works contract" because the appellant got itself registered for "works contract service." He submits that in case of registration, the Department gives registration to the assessee and not a license to render the service and if a registered assessee provides any service other than that specified service in the application for registration in Form ST-1, he cannot be compelled to pay the service tax in accordance with provisions for levy of service tax for those particular specified services. 17. Though the Commissioner has come to a conclusion that majority of the services rendered by the appellant come under "works contract service", it is seen that the conclusion is based on the fact of registration by the appellant and not by the nature of the depiction of work. While the Commissioner claims that the appellant did not submit any contracts, agreements etc., he proceeds to classify the services on the basis of the contracts. The Commissioner observed as follows: "33.3. It is fact that the decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the gross value including ST, the value shown in 26AS has to be considered as cum-tax and not ex-tax and the orders passed by the Supreme Court in Amrit Agro Industries Limit vs. Commissioner of Central Excise, Ghaziabad [2007 (210) ELT 183 (S.C.)], is not applicable in this case, as there is a specific section 67(2) in Finance Act on the subject. The value charged in the bills should be taken as cum-tax in view of decision of the Supreme Court in Advantage Media Consultants. Learned counsel relies upon the following cases: i. Commissioner of Central Excise & Customs, Patna vs. Advantage Media Consultant [2008 (10) S.T.R. 449 (Tribunal- Kolkata)]; ii. P. Jani & Co. vs. Commissioner of Service Tax, Ahmedabad [2010 (20) STR 701 (Tribunal Ahmedabad) ]; iii. Spandana Spoorthy Financial Limited vs. Commissioner of Central Excise & Service Tax, Hyderabad-IV [2016 (45) STR 265 (Tri.-Hyd.) ] ; and iv. ICICI Econet Internet & Technology Fund vs. Commissioner of Central Tax, Bangalore North [2021 (51) G.S.T.L. 36 (Tri.-Bang.)]. 22. The appellant has made out a prima facie case for the cum-duty benefit. The cases relied upon by the appellant support their contention. The Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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