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TMI Blog2019 (1) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... said Act). 4. On 17 July 2018, when the Petition was heard for admission, Ms. Asha Desai, had raised a preliminary objection by pointing out that the Petitioner has a remedy of instituting an appeal against the impugned order dated 14 October 2016. By a detailed order dated 17 July 2018, this objection was not accepted and Rule was issued in this Petition. 5. Today, when the matter was taken up for final disposal, Ms. Desai, once again, submitted that this Petition ought to be dismissed because the Petitioner has an alternate and efficacious remedy of instituting an appeal against the impugned order dated 14 October 2016. She submitted that the constitutional validity of Section 35F of the said Act, as also the provisions similar to the same, has already been upheld by the Honourable Apex Court, as well as by this Court. She submits that there are factual disputes involved in the present petition and the Appellate Authority constituted under the said Act would be in a better position to resolve the same. For all these reasons, Ms. Desai once again submitted that this Petition be dismissed and the Petitioner be relegated to avail of the alternate remedy available under the said Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in original dated 23 November 2015, confirming the demands in the show cause notices. 10. The aforesaid order in original dated 23 November 2015 was, however, set aside by this Court by its Judgment and Order dated 13 June 2016 in Writ Petition No. 233 of 2016 and the matter was remanded to the Commissioner for fresh adjudication, after giving opportunity of hearing to the Petitioner. 11. The Commissioner, in pursuance of the remand, however, once again, confirmed the demand in the show cause notices, vide order-in -original dated 14 October 2016. It is against this order-in-original dated 14 October 2016 (impugned order) that the present Petition has been instituted. 12. If the impugned order dated 14 October 2016 is perused, then, it is very clear that the same is almost entirely based upon the Judgment and Order dated 4 February 2014 made by the CESTAT, WZB, Mumbai in the proceedings concerning the Petitioner, but relating to the period June 2005 to September 2005. In fact, in paragraph 36 of the impugned order, the Commissioner has quoted the CESTAT's order dated 4 February 2014 and on the said basis, confirmed the demands in the show cause notices issued to the Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f in this regard is forthcoming from the assessee. On the very face of the language used in Section 67 of the Finance Act, 1994, we cannot subscribe to the view held by the majority in the Appellate Tribunal that in a contract of the kind under consideration there is no sale or deemed sale of the parts or other materials used in the execution of the contract of repairs and maintenance. The finding of the Appellate Tribunal that it is the entire of the gross value of the service rendered that is liable to service tax, in our considered view, does not lay down the correct proposition of law which, according to us, is that an assessee is liable to pay tax only on the service component which under the State Act has been quantified at 30%." [emphasis supplied] 16. Ms. Desai, however, submits that in the present case, even though the Petitioner was claiming benefits of the exemption under Notification No. 12/2003-ST dated 20 June 2003, the Petitioner had failed to comply with the terms and conditions, subject to which such exemption could be availed. She submits that the Commissioner, in the impugned order, has quite correctly noted that the exemption under Notification dated 20 June ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary in the public interest so to do, hereby exempts so much of the value of all the taxable services, as is equal to the value of goods and materials sold by the service provider to the recipient of service, from the service tax leviable thereon under section (66) of the said Act, subject to condition that there is documentary proof specifically indicating the value of the said goods and materials. 19. The proviso makes it clear that the exemption would apply only in such cases where no credit of duty paid on such goods and materials sold, has been taken under the provisions of the Cenvat Credit Rules, 2004 or where such credit has been taken by the service provider on such goods and materials, such service provider has paid the amount equal to such credit availed before the sale of such goods and materials. It was not even the case of the Respondents that the conditions in the proviso were not fulfilled by the Petitioner. 20. The exemption under Notification dated 20 June 2003 makes no provision requiring the sale value to be quantified and shown separately in the invoice. The exemption notification no where requires the service provider to indicate on the bill/invoice the valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Honourable Apex Court, however, rejected the said contention by observing that the said contention "overlooks certain basic features of the case, namely undisputed assessment of the assessee under the local Act; the case projected by the Department itself in the show cause notice; and thirdly the affidavit filed before this Court by one S.S ubramanian, Commissioner of Central Excise, Salem". The Apex Court noted that no dispute whatsoever had been raised with regard to the assessment of the appellant on its turn over under the local/State Act, in so far as payment of Value Added Tax on that component (70%) is concerned. Therefore, the reasoning reflected in paragraphs 11, 12 and 13 of the decision of the Apex Court in Safety Retreading Co. (P) Ltd. (supra) is sufficient to reject Ms. Dessai's contention relating to the alleged non-compliance with the conditions of the exemption under Notification dated 20 June 2003. 23. Mr. Rajesh Chander Kumar, the learned Counsel for the Petitioner has pointed out that for the period of disputes between April 2009 to March 2010, April 2008 to September 2008, April 2010 to July 2011, August 2011 to March 2012, October 2008 to Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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