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TMI Blog2014 (2) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... it thereby qualifying themselves for the benefit of abatement - After claiming such abatement they paid the amount towards the demand - the plea of limitation as well as the plea of financial hardships had also been considered. - stay granted partly. - Appeal No. 3060/2011 - MISC. ORDER No. 25529/2013 - Dated:- 3-4-2013 - Mr. P.G. Chacko and Mr. B.S.V. Murthy, JJ. For the Appellant: Mr. G. Shivadass, advocate For the Respondent: Mr. Ganesh Haavanur, Additional Commissioner (AR) ORDER Per: P.G. Chacko; This application filed by the appellant seeks waiver and stay in respect of the adjudged demands which include the following: i. Rs. 38,05,936/- demanded towards service tax and education cess for the period 2003-05 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.06.2005 and therefore the appellant cannot be considered to be liable to pay service tax for the period 2003-05 and, if that be so, Section 11D of the Central Excise Act cannot be applied on its terms. For this provision to be applicable, the assessee should, in the first instance, be found to be liable to pay service tax and, secondly, he should be found to have collected such service tax from their clients and not paid to the exchequer. As the appellant was not liable to pay service tax during the said period, the question of Section 11D being applied to this case does not arise. The learned counsel has also pleaded limitation against the demand of over Rs. 4.2 crores. He submits that the extended period of limitation under the proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to pay service tax on the subject activity prior to 16.06.2005 also and hence there appears to be nothing wrong with the invocation of Section 11D of the Central Excise Act for that period. For the later period (2005-09), the taxability of the activity under the head Erection, Commissioning and Installation Service is not in dispute. The debatable question is whether the benefit of abatement under the Notification No. 1/2006 ST ibid could be claimed by the assessee. It is not in dispute that the appellant reversed the CENVAT credit in question thereby qualifying themselves for the benefit of abatement. After claiming such abatement, they paid an amount of Rs. 1.2 crores towards the demand of Rs. 4.2 crores for the period 2005-09. This p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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