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TMI Blog2018 (6) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... definitely eligible for exemption of the value of the materials sold to the service recipient/client while undertaking the maintenance or repair service - the matter requires to be remanded for verification and extending the benefit of N/N. 12/2003. Benefit of cum tax - Held that:- Even in the SCN, it is stated that the appellant has not collected service tax. Therefore it is clear that the assessee has been raising invoices without charging service tax - the Commissioner (Appeals) has rightly allowed the benefit of cum-tax to the assessee. Time Limitation - Held that:- The assessee was not aware of the liability to pay service tax and that there was no intention to evade payment of tax, as the entire demand was made from the figures/docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner (Appeals) and vide order impugned herein the Commissioner (Appeals) reduced the demand to ₹ 5,01,073/- alongwith interest and set aside the penalty imposed under section 76 and 77 and reduced the penalty imposed under section 78 in accordance with the tax demand confirmed. Accordingly the assessee has filed appeal ST/611/2010. The Department has filed ST/559/2010 aggrieved by the reduction of demand of service tax as well as setting aside of penalty. 2. On behalf of the assessee, the Ld.Councel, Ms.Cynduja Crishnan submitted that though the demand is confirmed under Management, Maintenance and Repair Service, the authorities below failed to extend the benefit of notification 12/2003 ST dt.20.6.2003 stating that the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of extended period is correct and proper. 4. Heard both sides. 5. The assessee was undertaking Maintenance and Repair work in M/s.Kilburn Chemicals Ltd, Tuticorin on the basis of contract entered with them. The rate for the maintenance and repair work was fixed on agreement which include the cost of materials used, labour charges and service charges for organising the above works. The main grievance of the assessee is that they have not been given the benefit of Notification 12/2003 which allows deduction/exemption of value of the cost and materials sold by the service provider while rendering services. The above said notification provides that the service provider has to produce documentary proof indicating the value of goods and materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny service tax returns are not eligible to contend that they are not guilty of suppression of facts. After considering the facts of the case as well as the submissions made by both sides, we do not find any merit in the arguments put forward on the issue of limitation. The Commissioner (Appeals) has rightly set aside the penalties observing that assessee has given reasonable explanation for failure to pay service tax, and this conclusion of the Commissioner (Appeals) does not require any interference. 8. From the discussions above, the appeal ST/611/2010 is partly allowed and partly remanded to the adjudicating authority for reworking the demand after extending the assessee the benefit of Notification 12/2003 on production of documentary p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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