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TMI Blog2023 (3) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... services realized by them for the period from July 2008 to December 2008. Upon being pointed out, it appears that the appellant had paid Rs.2,78,779/- on 18.12.2008 for the half year ending September 2008. Further, it is also borne on record that the Internal Audit Party had noticed that the appellant had not paid the Service Tax on Site Formation Service, Cargo Handling Service and Commercial or Industrial Construction Service provided to various clients. 4. Accordingly, a Show Cause Notice dated 07.04.2010 was issued alleging, inter alia, various violations and consequently proposing to demand: - (i) Service Tax of Rs.1,79,07,643/- under Section 73(1) of the Finance Act, 1994; (ii) Rs.9,83,960/-, being the CENVAT Credit wrongly taken and utilized by the appellant, to be recovered under Rule 14 of the CENVAT Credit Rules, 2004; (iii) Rs.2,78,779/- paid by the appellant, to be appropriated; (iv) Interest under Section 75 of the Finance Act, 1994; and (v) Penalty under Sections 76 and 78 of the Finance Act, 1994 read with Rule 15(2) of the CENVAT Credit Rules, 2004. 5. The appellant filed a detailed reply dated 24.11.2011 thereby rebutting the proposal made on each coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant that it had entered into an agreement with M/s. Nuclear Power Corporation of India Ltd., Kudankulam, which involved even construction of roads and that the above contract was an infrastructural project for the generation of electricity. He thus pleaded that the above contract was a Works Contract prior to 01.06.2007 and hence, the benefit of the decision of the Hon'ble Apex Court in the case of Commissioner of C.Ex. & Cus., Kerala v. M/s. Larsen & Toubro Ltd. [2015 (39) S.T.R. 913 (S.C.)] was available. He would further place reliance on the exemption Notification No. 17/2005-S.T. dated 07.06.2005 whereby even the construction of roads has been held to be exempted insofar as the same related to Site Formation Services and relied on the order of the co-ordinate Chandigarh Bench of the CESTAT in the case of M/s. Ludhiana Builders v. Commissioner of C.Ex. and S.T., Ludhiana [2020 (37) G.S.T.L. 231 (Tri. - Chandigarh)] 8.3 The next issue is relating to the demand on Cargo Handling Services, against which it was contended that the work orders were issued by M/s. India Cements Ltd. and M/s. Hindustan Construction Co. Ltd. wherein the service involved was transportation per se, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s quintessential that a Show Cause Notice should reflect all such supporting evidences in support of each proposal for demand of respective duty / tax. We have seen a copy of the Show Cause Notice and there is no dispute even by the representative of the Revenue that nowhere in the Show Cause Notice is it mentioned as to the relied upon documents nor is there any averment about supplying such relied upon documents to the noticee. 10.2 Further, it is also clear from a perusal of the Show Cause Notice that it has been alleged that the appellant provided the services mentioned thereunder, that they did not pay the Service Tax on those services and that the verification carried out by the audit party warranted the invocation of extended period for demanding the tax due. Thus, it is very clear from the Show Cause Notice that there is not even a single assertion proposing to levy and collect Service Tax on the basis of any specific document / evidence. 10.3 We have gone through the impugned Order-in-Original wherein the Adjudicating Authority has referred to copy of challans produced as evidence by the appellant, purchase orders (1) No. NPCIL/KKNPP/TS/2007/S/3113 dated 28.02.2007 issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rth moving and demolition and such other similar activities referred to in sub-clause (zzza) of clause (105) of Section 65 of the Finance Act, provided to any person by any other person in the course of construction of roads, airports, railways, etc., which Notification was interpreted by the co-ordinate Chandigarh Bench of the CESTAT in the case of M/s. Ludhiana Builders (supra) wherein the Learned Bench has held as under:- "7. ..... ..... .......We find that Notification No. 17/2005-S.T., dated 7-6-2005 does not say that if it is not a public road then it is liable to be taxed. Therefore, we hold that the appellant is engaged in the construction of road and the same is exempt as per the Notification No. 17/2005-S.T., dated 7-6-2005, therefore, no service tax is payable by the appellant." 13.2.2 Thus, the appellant is well within its right to claim bona fides as to the non-payment of Service Tax on the above. 13.3.1 In respect of the demand pertaining to Cargo Handling Services, Learned Advocate for the appellant would draw our attention to Annexure-II to the Show Cause Notice wherein the issuing authority has extracted the description of work as per se transportation. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied retrospectively while oppresive circular has to be applied prospectively. Thus, when the circular is against, the assessee, they have right to claim enforcement of the same prospectively." 13.5 The last demand at Sl. No. 5 pertains to the denial of CENVAT Credit on capital goods which has been denied on the ground that the noticee did not turn up with documents for verification by the jurisdictional Service Tax authority. It is the settled position of law that no CENVAT Credit shall be allowed on capital goods used exclusively in the manufacture of exempted goods or in providing exempted services; but from a perusal of the Show Cause Notice or the impugned Order-in-Original, nowhere do we see that the lower authority has placed reliance on any evidence to support that the appellant was indeed engaged in the manufacture of exempted goods or was providing exempted services. 14. From the above discussions, it is clear to us that even on merits, the demands proposed in the Show Cause Notice, which thereafter have been confirmed in the impugned Order-in-Original, are without any basis or without any documentary evidence and that there is serious violation to the principles of nat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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