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TMI Blog2014 (5) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... nd and construction, erection, installation, commissioning, design, engineering, transportation, port clearance etc. on the other hand. 3. According to the petitioner, the petitioner enters into separate agreements with its clients, one for supply of plant, machinery and equipment and the other for design, engineering, construction, erection and commissioning of the entire plant by using the said plant, machinery and equipment supplied under the first agreement. 4. Although two agreements are usually executed, the scope of the work is planning, designing, engineering, construction, fabrication, supply, erection, trial run and commissioning of the plant, which consists of civil, structural, electrical and mechanical works with allied auxiliary facilities such as ventilation, air conditioning, dust extraction and suppression, fire fighting, drinking water supply etc. It appears that both the agreements contain cross fall breach clauses specifying that breach of any one contract would constitute the breach of the other contract. 5. In course of business, the petitioner entered into four contracts two with Northern Coalfields Limited (hereinafter referred to as the 'N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 tonnes Silo with rapid wagon loading system of 5500 tonnes per hour, crushing complex comprising of gyratory crusher, all civil, structural, electrical and mechanical works along with allied auxiliary facilities such as ventilation, dust extraction and dust suppression system, fire fighting system, drinking water supply system etc. As usual, two separate contracts were executed one for supply of equipment and accessories and the other for works and services of Rs. 2272.41 lakhs and Rs. 5781.59 lakhs respectively. 10. On or about 10th July, 2008, a show cause notice was issued by the Additional Director General, DGCEI, Ahmedabad Zonal Unit, Ahmedabad, alleging that the petitioner had during the period from 1st July, 2003 to 20th September, 2007 wrongly availed the benefit of Notification No. 19/2003-S.T., dated 21st August, 2003 and Notification No. 1/2006-S.T., dated 1st March, 2006, (hereinafter referred to as "said Notifications") and obtained abatement of 67% duty by not including the value of plant, machinery and equipment in computing the taxable value for calculation of the Service Tax payable. 11. In the show cause notice it was alleged that the petitioner was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd NCL in respect of Dudhichua Coal Handling Plant, Phase-II had been completed long before erection activity had been made taxable service. 18. It was also contended that of the total amount of Rs. 5,00,88,555/- received in respect of Dudhichua Coal Handling Plant, Phase II after 1st June, 2003, only Rs. 1,02,00,000/- was on account of commissioning and installation and the balance for construction activity for erection of plant which was not liable to Service Tax at the material time. 19. The petitioner further contended that in course of execution of the works and service contract involving construction, erection, installation, fabrication and commissioning of plant, the petitioner sold goods and material such as bricks, morrum, boulders, ballast, stone-chips, sand, cement flooring materials and tiles, reinforcement of TMT bars and other construction materials and finished production for which the petitioner paid Value Added Tax under the West Bengal Value Added Tax Act, 2003. The petitioner claimed that the petitioner was entitled to examine of the value of taxable service as was equal to the value of goods and materials sold by the petitioner to the service recipie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mended, provides that an assessee aggrieved by an order passed by a Commissioner of Central Excise under Section 73 or 83A or an order passed by a Commissioner of Central Excise (Appeals) under Section 85, may appeal to the Appellate to the CESTAT. 26. Sub-sections (6) and (7) of Section 86 of the Finance Act, 1994 as amended are extracted hereinbelow for convenience :- "Sub-section (6) : An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall, irrespective of the date of demand of service tax and interest or of levy of penalty in relation to which the appeal is made, be accompanied by a free of, - (a) where the amount of service tax and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates to five lakh rupees or less, one thousand rupees; (b) where the amount of service tax and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than five lakh rupees but not exceeding fifty lakh rupees, five thousand rupees; (c) where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filling." 27. Pending the appeal, an appellant is required to deposit with the adjudicating authority the duty demanded or the penalty levied. However, in any particular case where the Appellate Authority is of the opinion that deposit of duty demanded or penalty levied would cause undue hardship to such person, the Appellate Authority might dispense with such deposit subject to such conditions as he might deemed fit to impose so as to safeguard the interest of revenue. 28. The Appellate Authority may dispense with pre-deposit subject to such conditions as he might deemed fit to impose as to safeguard the interest of the revenue. In Benara Valves Ltd. v. Commissioner of Central Excise, reported in 2006 (204) E.L.T. 513 (S.C.) = 2008 (12) S.T.R. 104 (S.C.) the Supreme court held as follows :- "8. It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assessee to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hardship or a hardship greater than the circumstances warrant. 15. The other aspect relates to imposition of condition to safeguard the interest of revenue. This is an aspect which the Tribunal has to bring into focus. It is for the Tribunal to impose such conditions as are deemed proper to safeguard the interest of revenue. Therefore, the Tribunal while dealing with the application has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate condition as required to safeguard the interest of revenue." 29. The aforesaid view has been reiterated in Pennar Industries Ltd. v. State of Andhra Pradesh & Ors. reported in (2009) 3 SCC 177; Ravi Gupta v. Commissioner of Sales Tax reported in 2009 (237) E.L.T. 3 (S.C.) = 2010 (20) S.T.R. 264 (S.C.); Monotosh Saha v. Special Director, Enforcement Directorate reported in 2008 (229) E.L.T. 492 (S.C.) = 2010 (18) S.T.R. 81 (S.C.); Indu Nissan Oxo Chemicals India Ltd. v. Union of India reported in 2008 (221) E.L.T. 7 (S.C.). 30. Compulsion to pay any unjust dues per se would cause hardship as held by the Supreme Court in B.M. Malani v. Commissioner of Income Tax reported in (2008) 306 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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