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2013 (10) TMI 1208 - AT - Service TaxValuation - Commercial or industrial construction service - inclusion of cost of material - Held that - appellant has been able to show that the materials have been sold and have been assessed to VAT. Notification No.12/2003-ST requires sale of materials and evidence for sale of materials. In our opinion, appellant has been able to make out a prima facie case that the materials shown by them as sales satisfies the requirements of the Notification. Needless to say that the final decision will depend upon detailed consideration of statutory provisions, relevant VAT provisions, invoices issued, agreement between the parties etc. Since the appellant has made out a prima facie case on merits, we consider it appropriate that there shall be waiver of predeposit. - stay granted.
Issues:
1. Admissibility of deduction of value of materials sold under Notification No.12/2003-ST for service of 'commercial or industrial construction'. 2. Imposition of penalty under Section 78 of Finance Act, 1994. Issue 1: Admissibility of deduction of value of materials sold under Notification No.12/2003-ST for service of 'commercial or industrial construction'. The appellant, engaged in providing 'commercial or industrial construction' services, faced a demand from the Department for service tax exceeding Rs.10 crores with interest. The dispute arose from the Department's contention that the appellant's claim for deduction of the value of materials sold under Notification No.12/2003-ST was not permissible. The primary basis for this demand was the absence of separate VAT showing in the appellant's invoices, leading the Revenue to argue that without separate VAT showing, a sale could not be established, and any sale would be deemed and not covered by the Notification. Upon review, it was found that the appellant's invoices did separate the value of materials from the value of services provided. The material value was shown as a percentage, initially at 60% but later found to be 62% in a specific case. The appellant explained the VAT calculation methodology, citing the impossibility of charging VAT separately based on actual material issued for the contract. Instead, the appellant calculated VAT based on material purchases and gross profit as per the Tamil Nadu VAT Act. The appellant's VAT assessment order for 2009-2010 under the TN VAT Act further supported the sale of materials. The Tribunal held that the appellant had prima facie demonstrated that the materials were sold, meeting the Notification's requirements, pending detailed consideration of statutory provisions, VAT regulations, invoices, and agreements. Consequently, the requirement of predeposit was waived, and a stay against recovery during the appeal was granted. Issue 2: Imposition of penalty under Section 78 of Finance Act, 1994. During the proceedings, the appellant's consultant highlighted an additional demand for interest of around Rs.3 lakhs, which the appellant had already deposited more than Rs.5 lakhs against. This aspect was not factored into the Tribunal's earlier decision to waive the predeposit requirement. However, the Tribunal did not provide a specific ruling on this interest demand, as the consultant raised it after the initial decision. The Tribunal's focus remained on the admissibility of the deduction of the value of materials sold under Notification No.12/2003-ST, resulting in the waiver of predeposit and the grant of a stay against recovery during the appeal process. This detailed analysis of the judgment from the Appellate Tribunal CESTAT Bangalore showcases the considerations and findings related to the issues of admissibility of deduction of material value and the imposition of penalties under the Finance Act, 1994.
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