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TMI Blog2014 (11) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No. 12/2003-ST cannot be granted merely on the basis of overall estimation/approximations put forth and without any documentary proof specifically indicating the value of goods and materials sold in respect of the individual recipients of service as per the contracts entered into by the appellants with each of them. They have failed to produce such documentary proof so far. The appellants insist that they have such documentary proof and would be able to produce the same. In such a situation, it is only fair that the case is remanded to the adjudicating authority to enable the appellants to do so. - Matter remanded back - Decided partly in favour of assessee. - Appeal No.ST/334/2009 - Cu[DB] - FINAL ORDER NO. 53962/2014 - Dated:- 15-10-2014 - Mr. G. Raghuram and Mr. R.K. Singh, JJ. For the Appellant : Shri A.K. Batra, Advocate For the Respondent : Shri R. Puri, AR JUDGEMENT PER: R.K. Singh The appellants have filed this appeal against Order-in-Original No. 05/VKG/2009 dated 09.02.2009 in terms of which service tax demand amounting to ₹ 31,77,416/- (for the period 16.06.2005 to 31.05.2007) has been confirmed alongwith interest and mandatory pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2003-ST on the ground not mentioned in the Show Cause Notice. (2) They are eligible for Notification No. 12/2003-ST as there has been transfer of goods and materials in the execution of their works and as per the 46th Amendment to the Constitution, their works contracts involve both sale and service and on sale portion service tax cannot be charged. (4) Service Tax can not be charged on the value of goods and materials sold while providing the impugned service. (5) The decision of CESTAT in Deluxe Colour Lab and others VS. CCE, Jaipur 2008 (17) STT 481 (New Delhi CESTAT) supports their contention. (6) Bifurcation of goods and material on invoices issued by appellant is not a must and only documentary evidence of value of goods and material sold is required for claiming the benefit of Notification No. 12/2003 dated 20.06.2003. (7) They also referred to the judgments in case of Express Colour Lab. 2006-(002)-STR-0089-COMMA, and Crystal Colour Lab 2006-(001)-STR-0221-COMMA, and Wipro GE Medical System Pvt. Ltd. Vs. Commissioner of S.T. Bangalore, 2006-(004-)-STR-0442 (Tri.-Ban.) and several others. (8) They have documentary evidence to substantiate their claim und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is seen that during the adjudication or in their appeal before CESTAT the appellants have not contended that they are eligible for the benefit of exemption under Notifications No. 15/2004-ST and 1/2006-ST. Thus the adjudication authority was right in denying the benefit of the said two notifications to the appellants. 6A. Paras 7 to 14 below draw heavily from the CESTAT order No. 53255/2014 dated 06.06.2014 as they are fully applicable to the present case not only because the issues/circumstances in this case are identical/similar to those in case of M/s. Kalpik Interiors but also because pair of ld consultant and the Ld. AR in both cases was the same and made same/similar respective submissions. 7. The question of appellants eligibility for benefit of Notification No. 12/2003-ST was not the direct subject matter of Show Cause Notice and the Show Cause Notice did not require them to show cause as to why they should not be denied the benefit of the said notification and understandably so because during investigation, the appellants admitted to have availed of benefit of Notification No. 15/2004-ST and Notification 1/2006-ST and their documents like ST-3 Returns also suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s they are liable to sales tax. Indeed, the adjudicating authority in para 51 of the impugned order takes due notice thereof without quarrelling. The exemption Notification No. 12/2003-ST is in effect not in disharmony with the said Constitutional amendment. Indeed, as clearly laid down in the said exemption notification, service tax is not to be levied on the value of the goods and materials sold by the service provider to the service recipients provided there is documentary proof specifically indicating the value of the said goods and materials. Thus what is mandatorily required to claim the benefit of Notification No. 12/2003-ST is nothing short of documentary proof and that too of such a nature which specifically indicates the value of such goods and materials. Thus, mere plausible explanations and/or approximations regarding value of said goods and materials are clearly insufficient for the purpose of Notification No. 12/2003-ST. In the present case the appellants on being found out having illegally availed of Notification No. 15/2004-ST and Notification 1/2006-ST have attempted to get covered under Notification No. 12/2003-ST. But it is seen from the adjudication order a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by Article 366(29A) (b) is the value of the goods involved in execution of work contract since the taxable event is the transfer of properly in goods, the said transfer takes place when the goods are incorporated in the works, the value of goods, which can constitute the measure for the levy has to be the value of goods at the time of incorporation of the goods in the works. Para 36(2). Service tax can be levied on the service component of any contract involving service with sale of goods etc. Computation of service component is a matter of detail and not a matter relating to validity of imposition of service tax. It is procedural and a matter of calculation. Merely because no rules are framed for computation, it does not follow that no tax is leviable. Para 31. The contention of the petitioners that the impugned notifications override the statutory provisions contained in Section 65(105), which defines the term taxable service., Section 66, which it is claimed is a charging section, and Section 67, the valuation provisions of the Finance Act, 1994, has to be rejected. We have, as already stated above, rejected the argument of the petitioners on bifurcation/vivisect an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taka 2006 (3) STR 337 (S.C.) - Relied on [Para 21,22] 9. Larsen Toubro Ltd. v. State of Karnataka - Civil Appeal No. 8672 of 2013 of Supreme Court -Followed [Para 22] 10. Mahim Patra, Pvt. Ltd. v. Union of India- 2007 (7) STR 110 (s.C.)-Referred [Paras 24,25,27] 11. Nagarjuna Constn. Co. Ltd. v. Government of India-2012 (28) STR 561 (S.C.)-Relied on [Para 35] 12. Nagarjuna construction Co. Ltd. v. Government of India -2010(19) STR 321 (A.P.) [Paras 34,35] 13. State of Kerala v. Builders Association of India - (1997) 2 SCC 183-Relied on.......[Para 32] 14. Tamil Nadu Kalyana Mandapam Assn.v. Union of India - 2006 (3) STR 260 (S.C.)=2004 (167) ELT 3 (S.C) - Followed [Paras 20,28] 12. Needless to say, the classification of service is to be determined as per the definitions of various taxable services prevalent during the relevant period and merely because the classification changes with the introduction of a taxable service under which an existing service gets more specifically covered in no way means that the said service was not necessarily taxable during the period prior thereto. The contents of ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax when there was no scope for any ambiguity or confusion regarding the inadmissibility thereof. In coming to a finding regarding suppression of facts overall facts and circumstances of the case have to be considered in each case as was also held in the case of Mett Macdonald Ltd. Vs. CCE, Jaipur 2006(2) STR 524 (Tri.-Del.). In the present case, the fact that the appellants did not inform the department that they were claiming the said exemption notifications in respect of completion and finishing services coupled with the fact that they so brazenly and blatantly indulged in claiming the benefit under the said notifications in spite of the fact that the said notifications were so expressly, conspicuously and unambiguously not applicable for the said services establishes suppression of facts on their part unquestionably at least on the basis of preponderance of probability. We must hasten to add though that this doesn t debar them from staking a claim for the benefit of Notification No. 12/2003-ST provided as discussed and elaborated earlier, the conditions stipulated thereunder are fully satisfied in the manner prescribed. 15. In the light of the foregoing, and followin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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