2011 (1) TMI 799

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..... which can be thoroughly examined in the course of regular hearing for which we dispense with requirement of pre-deposit during pendancy of appeal
Dr. Chittaranjan Satapathy, Shri D.N. Panda, JJ. REPRESENTED BY : S/Shri P.K. Sahu & Prashant Shukla, Advocates, for the Appellant. Shri I. Baig, DR, for the Respondent. [Order per : D.N. Panda, Member (J)]. - The appellant came in appeal against order of adjudication dated 27-11-2009 raising service tax demand of Rs. 1,10,22,279/- coupled with Education Cess of Rs. 2,20,445/- in respect of SCN dated 2-6-2008 and service tax demand of Rs. 35,31,854/- coupled with Education of Rs. 70,367 and Higher Education cess of Rs. 35,318/- in respect of SCN dated 21-4-2009 followed by interest and pen .....

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..... the following reasons : (i) The Commissioner has failed to appreciate that the appellant has entered into transactions for selling RMC for delivery at the site and, therefore, not exigible to service tax. The activities of pouring, pumping and laying of concrete is not a significant part of the transaction and incidental to transaction of sale. The whole activity-is sale transaction and there is no element service in it. In any case, the Commissioner has wrongly demanded service tax on the transactions for supply of RMC, where pumping, pouring and laying activities were not involved. (ii) The Commissioner has wrongly relied upon the statement of the Manager, Finance of the appellant to observe that it has started collecting service tax o .....

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..... as it had started paying the service tax with effect from 1-6-2007 suo motu as per the amendment made in the Act. (vi) The Commissioner has not considered that it had not received any service tax over and above the gross amount collected from its customers. He has computed the tax demand on the amounts received by it, when such amount should have been treated as inclusive of tax. (vii) There is no justification for levy of any penalty on the appellant. 3. Ld. DR appearing on behalf of Revenue supported the order of adjudication and submitted that the appellant was providing the commercial and Industrial construction service for which right adjudication was made. He relied para 4.1 of the order of adjudication to support the claim o .....

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