9911796707
TMI Blog2013 (8) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... ith conditions in the favour of the assessee. - ST/402/2011 - STAY ORDER NO.804/12 - Dated:- 3-12-2012 - P G Chacko And Mathew John, JJ. For the Appellant : Shri G Natarajan, Adv. For the Respondent : Shri D P Naidu, SDR Per: P G Chacko: This application filed by the appellant seeks waiver and stay in respect of service tax of over Rs.1.68 crores demanded for the period from June, 2005 to March, 2008, equal amount of penalty imposed under Section 78 of the Finance Act, 1994, besides a minor penalty of Rs.5,000/ - imposed under Section 77 of the Act. On a perusal of the records, we find that a major part of the demand of service tax (Rs.64.66 lakhs) is in respect of activity undertaken by the appellant under work order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove classification of the activity as disclosed from the records. Prima facie , therefore, the allegation of suppression of material facts with intent to evade payment of appropriate service tax cannot be faulted. For all these reasons, the demand of over Rs.64.66 lakhs is prima facie sustainable. (b) In respect of the rest of the demand of service tax, however, the appellant seems to have prima facie case. Demand of service tax of about Rs.60 lakhs is in respect of activities classified by the adjudicating authority under "site formation". The appellant has classified these activities also under "Commercial or Industrial Construction Service". However, in respect of a major part of this demand, the substantive issue is whether the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue. This cost was included in the taxable value and the impugned demand raised. 2. After hearing both sides, we have found prima facie case for the appellant in support of their agreements against the demand. We have taken this view, in view of the orders passed by the Hon'ble Madras and Delhi High Courts which are to the effect that, as per the Explanation to the abatement notification, the provider of "Commercial or Industrial Construction Service" need not include cost of free supplied materials in the taxable value vide 2007 (7) STR 123 (Mad) 2008 (11) STR 3 (Del). Though the Hon'ble High Courts have expressed this view in interim order, we are inclined to follow the same in the present context on the facts and circumstances of this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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