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TMI Blog2019 (7) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... ce cannot be re-opened by the Revenue and the demand for the said period is liable to be set aside on this ground. Admittedly the composition rules are applicable on an option exercised by the assessee. Such an option was exercised by the appellant only w.e.f. December 2010 onwards. In the absence of any option having been exercised for the period in question, the applicability of the composition rules cannot be upheld. As such the demand has to be quantified in terms of the provisions of Rule 2A of Service Tax Valuation Rules, by taking into account the VAT assessment orders. Matter remanded to the adjudicating authority for fresh quantification of the demand against the appellant for the period falling within five years from the date of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 31.32 Lakhs (approx.). The said show cause notice resulted in passing of the present impugned order by the Commissioner vide which he confirmed the demand to the extent of ₹ 31.32 Lakhs and also held the appellant liable to penalty under section 78 of the Finance Act. However, while imposing penalty, he took into consideration the amount of ₹ 8.88 Lakhs already deposited by the appellant under VCES scheme and reduced the penalty to that extent. The Revenue is aggrieved with such reduction of penalty and has filed the present appeal, whereas the assessee has challenged the same very impugned order for confirmation of demand and imposition of penalty under section 78. 5. Shri Nishant Mishra, learned Advocate for the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod in question, all the contracts entered by them with their customers separately show the value of the goods as also the value of the services and are clearly bifurcable. They have paid VAT on the goods involved for which purposes there is VAT assessments orders by VAT authorities. As such it was possible for the Revenue to calculate the tax liability in terms of the provisions of Rule 2A of the Service Tax Value Rules. 6. Learned A.R. appearing for the Revenue reiterates the findings of the impugned order. 7. After appreciating the submissions made by both the sides and after going through the impugned orders, we find that undisputedly the show cause notice was issued on 25 June 2014. In terms of the provisions of section 73 of the F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant for the period falling within five years from the date of show cause notice. 10. As regards the Revenue's appeal, the same is only against the adjustment of the deposits already made by the appellant in terms of the provisions of VCES scheme. We note that the VCES declaration filed by the assessee was not finalized and in fact the same is the subject matter of the present impugned order. As such any deposits made by the appellant under the said scheme are required to be adjusted against the liability of the assessee either against demand or against penalty. As such we find no merits in the Revenue's appeal. The same is accordingly rejected. Both the appeals are disposed of in above manner. (Order dictated and pronounced in the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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