9911796707
TMI Blog2015 (11) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 68 crores stand imposed in one order and similarly in the other appeal, penalties to the extent of Rs. 200/- per day under Section 76 Rs. 10,000/- stand imposed. 2. After hearing both the sides duly represented by Shri Rajesh Chander Kumar, Advocate for the applicant and Shri PRV Ramanan, Special Consultant for the Revenue, it is seen that the appellants were engaged in engineering, procurement and construction of a port with M/s. Krishnarajapatnam Port Company Ltd. (KPCL) in terms of the contracts entered between the two. They were served with three show-cause notices. The first show-cause notice is dt. 19/01/2011 raising demands of service tax under various categories, by vivisecting the works contract, for the period August 2005 to M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment, if at all, is required to be made under the works contract service. He submits that the Larger Bench decision was given on 19/03/2015, by constituting a 5 Member Bench of the Tribunal. Prior to the said decision, there were divergent views of the Tribunal on the issue of vivisection of the works contract. As such, he submits that in terms of the decisions of various judicial forums, when there are divergent views during the relevant period, no mala fide can be attributed to the assessee to allege any suppression or mis-statement with mala fide intent to the assessee. For the said purpose, he draws our attention to the Hon'ble Supreme Court's decision in the case of Continental Foundation Jt. Venture Vs. CCE, Chandigarh-I [2007(216) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the category of port service. by drawing our attention to the definition of the port services, as was appearing before 01/07/2010 and after 01/07/2010, he submits that reading of the same makes it clear that the said services are the services which are provided within the port. As such, it is the contention of the learned advocate that the services envisaged under the said definition pre-supposes the existence of the port. Inasmuch as the services rendered by them are in respect of construction of a port, it cannot be held that the port was already in existence and the services provided by them are port services. In the alternative, submits the learned advocate that even otherwise in terms of the Notifications No.38/2010-ST dt. 28/06/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant's contention that at least after 01/06/2007, they are required to be taxed, if at all, under the category of 'works contract' that too after granting an abatement of 60%, as also benefit of the CENVAT credit, learned AR of the Revenue fairly agrees with the position. As regards limitation, he submits that the appellant was a registered service tax payee with the Department in respect of other services being undertaken by them and was paying service tax, which reflects upon his knowledge of law. Being aware of his liabilities to pay tax on the various services being rendered by them, they should have also included the present disputed service and should have discharged their duty liability accordingly. He also submits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35F which are to the effect that the provisions of the said section would not apply to stay applications pending before the appellate authority prior to commencement of the Finance Act, 2014. As such, he submits that inasmuch as the said section was introduced w.e.f. 06/08/2014 when the appellants stay petition was already filed and pending decision before the Tribunal, the same would have no applicability to the facts of the present case, which have to be decided independently by taking into account prima facie merits of the case. 8. In his rejoinder, the learned advocate draws our attention to the Hon'ble Rajasthan High Court's decision in the case of Arjun Industries Ltd. Vs. CC, Jaipur [2015(39) STR 3 (Raj.)] wherein the Hon'ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the fact that the appellant has not pleaded any financial hardship and taking into account the decision of the Hon'ble Rajasthan High Court in the case of Arjun Industries referred supra, we deem it to accept the offer made by the learned advocate as fair and just and accordingly we direct them to deposit an amount of Rs. 10 crores (Rupees ten crore only) as a condition of hearing of their appeals within a period of twelve weeks. At this stage, learned advocate brings to our notice that they have already deposited an amount of Rs. 1 crore (Rupees one crore only). The said fact would be verified by the field authorities. The deposit already made by the appellant would be considered as deposit towards the directed amount of Rs. 10 crores. S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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