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TMI Blog2018 (12) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of mobilisation advances from the service recipient M/s Today Homes Infrastructure Ltd. but have failed to discharge the service tax liability on these advances at the time of receipt. It was also observed that the appellant subsequently adjusted the said advance in running bills issued and paid service tax at that later stage. Resultantly, Department alleged that since still there is an unadjusted part of the mobilisation advance for the year 2012-13 and 2013-14, the appellant was alleged to have short paid the service tax. Resultantly, a Show Cause Notice No. 238 dated 08.02.2016 was served upon the appellant proposing the recovery of Rs. 18,14,860/- on account of the alleged short payment of service tax alongwith the interest at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mobilisation amount and the bank has acknowledged returning the said amount in favour of M/s Today Homes Infrastructure Ltd. It is submitted that on the said amount the liability which comes to the extent of Rs. 4,20,240/- therefore is not the taxable amount and the total liability of the appellant for the amount received for whatever part services were provided, i.e., an amount of Rs. 13,94,620/- has already been paid alongwith the interest. She has impressed upon that same has been acknowledged by the adjudicating authority below. 3.2 It is further impressed upon that Ld. Commissioner(Appeals)while rejecting the Appeal has mentioned that the agreement of settlement as is impressed upon to do away appellant's liability bears no date, desp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cture Ltd for providing construction services to the latter in the form of works contract service. In addition to the cost of services to be provided, an amount of Rs. 1Cr was agreed to be paid by service recipient to the provider i.e. to the appellant as mobilisation amount. The same was provided in the form of 5 bank guarantees of Rs. 20 lakh each. Also, there is another agreement dated nil which was executed by the service recipient in favour of the appellant. It appears therefrom that it was for an amicable settlement between them for full and final payments of work done by the appellant as the entire scope of the said work contract could not be executed by the service provider. Perusal thereof recites the acknowledgment of withdrawal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t said agreement. The affidavit of the appellant's Director deposing the date of said agreement as 29.03.2013 has not been considered by Commissioner(Appeals). Irrespective thereof the fact remains is that the adjustment was towards the services provided as the entire amount of Rs. 1Cr of mobilisation charges was encashed by the service recipient. This Tribunal has already decided the issue of withdrawal of advance money in the case of C.C.E. Bhavnagar Vs. Madhvi Procon Pvt. Ltd 2015 (38) STR 74 (Tri.-Ahmd.) holding: Taxability - Service Tax not payable when no service provided - Advance amount received under the contract for providing service - Service Tax paid on such advance contract - Contract terminated and no service provided - Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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