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TMI Blog2018 (3) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... essential materials for display of advertisement by the appellant. All the items which are now disputed for credit are essentially used to create such structures for display of advertisement. In fact many of these items are themselves used for display without any further elaborate fabrication. In such situation, there could be no reason for denial of credit holding that these items cannot be considered as inputs for such output service. Time limitation - Held that: - there is no allegation of willful suppression or mis-statement with intention to evade payment of tax - extended period and penalty cannot be invoked. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 55220 of 2013 - Final Order No. 50808/2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,85,79,559/-. The appellant filed their defence submission and the case was adjudicated resulting in the impugned order. The Original Authority held that the appellants are not eligible for above-mentioned credit and also imposed equal amount of penalty alongwith further penalty under Section 77 of the Finance Act, 1994. 2. The learned Counsel appearing for the appellant, contesting the findings in the impugned order submitted on the following lines :- (a) the appellants availed credit on various items like BQS, free standing panel supporting structure, Electrical equipments, steel framework, police booth (portable unit), stainless steel box for advertisement, mobile toilets, power meter, Renault air water winding device etc. Drawi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... QS). Here again these shelters are steel structures which are erected at the designated place earmarked by the local authorities in terms of the agreement with the appellant and the said agreement clearly stipulates, if needed the same should be relocated to the another place as per the decision of local authority. In fact in pursuance of such agreement in many cases BQS have been relocated to other places. In other words, these are fabricated structures which were used by the public as BQS and by the appellant, who created the same, for display of their advertisements. Such structures are essential requirements for the appellant to achieve their requirement of display of advertisement in public place. The output service of display of adver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such, the demand cannot be sustained for extended period for the same reason no penalty can be imposed on the appellant. 3. The learned AR contesting the appeal submitted that the appellant used various steel and other items and created structures which are embedded to earth. The created structures which have become capital assets in the books of the appellant are not duty paid. The inputs or raw materials which suffered excise duty were not directly used in providing advertising service. The usage of such duty paid steel items etc. is only for creation of such capital assets which thereafter might have been used by the appellant for display of advertisement. Reiterating the issue of duty paid item is for creation of immovable asset, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is with reference to BQS being immovable capital asset. We have seen the illustrative photographs submitted by the appellant. These BQS are not cement concrete civil structures but are made up of mainly stainless steel tubes materials, angles etc. These are erected in the designated place by the appellant in terms of the agreement with local municipal authorities. We have perused a sample agreement also. It is clearly stipulated that the location is subject to change and in fact there were instances where BQS have been relocated after certain time, from the earlier premises. In other words, these BQS cannot be considered an immovable property of fixed position though they are embedded to earth for beneficial use by the public as BQS. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded on the display of advertisement in public place. All the items which are now disputed for credit are essentially used to create such structures for display of advertisement. In fact many of these items are themselves used for display without any further elaborate fabrication. In such situation, there could be no reason for denial of credit holding that these items cannot be considered as inputs for such output service. 9. We also note that the appellants have a strong case on limitation. As recorded in the impugned order, the whole data was collected and proceedings against the appellant have been initiated only based on the details available in the ST-3 returns periodically filed by the appellant. That being the case there could be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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