TMI Blog2023 (3) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... d out by the audit party warranted the invocation of extended period for demanding the tax due. Thus, it is very clear from the Show Cause Notice that there is not even a single assertion proposing to levy and collect Service Tax on the basis of any specific document / evidence. From the discussions in the impugned Order-in-Original, it is found that it was the appellant who furnished most of the documents voluntarily, though no mention about any of the documents finds place in the Show Cause Notice. It is these very documents that were sent for verification to the jurisdictional Service Tax authority and hence, it would be incumbent upon the lower authority to have provided such report obtained from the jurisdictional Service Tax authority before fastening the appellant with tax liability - the liability was fastened on the appellant without following the principles of audi alteram partem and clearly, the consequential demands raised cannot sustain. Site Formation Services for which the appellant has relied on exemption Notification No. 17/2005-S.T. dated 07.06.2005 - HELD THAT:- The exemption has been granted for site formation and clearance, excavation and earth moving a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Learned Advocate for the appellant that the said Circular can operate only prospectively, as clarified by the Hon ble Supreme Court in the case of M/s. Suchitra Components Ltd. [ 2007 (1) TMI 4 - SUPREME COURT] wherein the Hon ble Court held that when the circular is against, the assessee, they have right to claim enforcement of the same prospectively. Denial of CENVAT Credit on capital goods which has been denied on the ground that the noticee did not turn up with documents for verification by the jurisdictional Service Tax authority - HELD THAT:- It is the settled position of law that no CENVAT Credit shall be allowed on capital goods used exclusively in the manufacture of exempted goods or in providing exempted services; but from a perusal of the Show Cause Notice or the impugned Order-in-Original, nowhere it is seen that the lower authority has placed reliance on any evidence to support that the appellant was indeed engaged in the manufacture of exempted goods or was providing exempted services. Even on merits, the demands proposed in the Show Cause Notice, which thereafter have been confirmed in the impugned Order-in-Original, are without any basis or without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2011 thereby rebutting the proposal made on each count and thereby contending that there was no liability to Service Tax for the various reasons given by them therein. They had also filed a rejoinder to their reply by enclosing additional documents as well in support of their claim that they were not liable to pay Service Tax. 6. During adjudication, the Commissioner-Adjudicating Authority having considered the replies filed by the appellant, however, has vide impugned order confirmed the demands proposed in the Show Cause Notice along with interest under Section 75 ibid. and penalty under Section 78 ibid. It is against this demand in the impugned order that the appellant has preferred the present appeal before this forum. 7. Heard Shri S. Durairaj, Learned Advocate for the appellant and Shri M. Ambe, Learned Deputy Commissioner for the Revenue. 8.0 The Learned Advocate for the appellant submitted at the outset that the Show Cause Notice is ex facie illegal since the issuing authority has not relied upon any evidence to propose the various demands against the appellant and that the Show Cause Notice is contrary to the C.B.E.C. Master Circular No. 1053/2/2017-CX. dated 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Co. Ltd. wherein the service involved was transportation per se, which was duly taken note of even in the Show Cause Notice, as mentioned in Annexure-II therein. The above transportation, according to the Learned Advocate, was ancillary and incidental, which did not attract Service Tax. In this connection, he would place reliance on the cases of M/s. Jain Carrying Corporation v. Commissioner of C.Ex., Jaipur [2019 (24) G.S.T.L. 376 (Tri. Delhi)] and M/s. M.L. Agro Products Ltd. v. Commissioner of Cus., C.Ex. S.T., Guntur [2017 (6) G.S.T.L. 94 (Tri. Hyderabad)] which was affirmed by the Hon ble Supreme Court in 2018 (18) G.S.T.L. J38 (S.C.) 8.4 The next issue is relating to the demand on construction services rendered to M/s. Petron Civil Engineering (P) Ltd., against which the Learned Advocate for the appellant contended that the nature of the service was construction or earth work evacuation and that the principal contractor itself had paid the Service Tax during 2006-07. This, however, was not accepted by the Adjudicating Authority who, by placing reliance on the Board Circular No. 96/7/2007-S.T. dated 23.08.2007, had denied the same. The Learned Advocate thus contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase orders (1) No. NPCIL/KKNPP/TS/2007/S/3113 dated 28.02.2007 issued by NPCL in favour of the noticee and (2) No. NPCIL/KKNPP/TS/2006/S/2184 dated 29.05.2006 issued by NPCL in favour of the noticee, invoices raised by M/s. India Cements Ltd. and M/s. ACC Ltd. and invoices raised for the purchase of capital goods from M/s. Schwing Stetter (India) Pvt. Ltd. The Commissioner has also placed reliance on the verification report of the jurisdictional Service Tax authority, which report admittedly was not provided to the appellant for rebuttal. 10.4 From the discussions in the impugned Order-in-Original, we find that it was the appellant who furnished most of the documents voluntarily, though no mention about any of the documents finds place in the Show Cause Notice. It is these very documents that were sent for verification to the jurisdictional Service Tax authority and hence, it would be incumbent upon the lower authority to have provided such report obtained from the jurisdictional Service Tax authority before fastening the appellant with tax liability. 11. From the above discussions, we are satisfied that the liability was fastened on the appellant without following the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein the issuing authority has extracted the description of work as per se transportation. If the Adjudicating Authority had any doubts that the appellant did undertake any other activity other than transportation inviting tax liability, then the same should have been put across to the appellant for rebuttal / explanation thereby providing an opportunity to the appellant to meet the allegations levelled against it. Contrary to this, the Adjudicating Authority refers the matter to the jurisdictional tax authority, obtains a report and proceeds to confirm the demand based solely on such report obtained behind the back of the appellant. Moreover, the name of the party as mentioned at Annexure-II to the Show Cause Notice refers to ICL and HCC whereas in the Order-in-Original, the lower authority has referred to ICL and ACC, which was perhaps based on the unrebutted report obtained by the lower authority. 13.3.2 In the above peculiar facts, we propose not to confirm the above demand as we find that there are serious inconsistencies, that the conclusion arrived at by the Adjudicating Authority appears to be in a haste and without proper application of mind and also that the principle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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