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TMI Blog2023 (12) TMI 1241X X X X Extracts X X X X X X X X Extracts X X X X ..... ss or damage which actually arises or which the parties knew when they made the contract, to be likely to result from the breach . Hence it cannot be concluded that sum received is synonymous to tolerating . It is absolutely wrong to say that in breach of contract one appellant tolerates an Act or a situation, hence, the view taken by the Commissioner (Appeals) that the liquidated damages as have been received by the appellants towards consideration for tolerating the Act are leviable to service tax under section 66 E(e) of Finance Act is not at all sustainable. In the fact of both the present appeals, it is found that the facts are almost identical. There appears nothing for us to differ from the above observations in the afore-me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mers who failed to lift the quantity of coal allotted to them and from the contractors who did not supply the goods within the stipulated period of time as per the agreement. 2. The agreements were provided to the Department vide appellant‟s letter dated 24.10.2013. The Department formed the opinion that the activities undertaken by the appellant, which were the source of the impugned income, are a declared service under Section 66E (e) and they are not covered under the negative list of services as is specified under section 66D of Finance Act, 1944 made applicable from 1st July, 2012. Hence, vide show cause notice No. 15/2016 dated 12.03.2016, service tax amount of Rs. 1,21,77,295/- covering the total period from July 2012 to Sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed in terms of the said order. 5. Learned Departmental Representative has conceded the said decision of the Principal Bench of this Tribunal, however, she still has impressed upon the findings arrived at by Commissioner (Appeals), while praying for dismissal of appeal. 6. Having heard both the parties and perusing the record of both these appeals and also having perused the final order of this Tribunal relied upon by the learned counsel for the appellant and conceded by the department, we observe and held as follows : 7. The meaning of service under section 65B (44) of Finance Act and that of declared service under Section 66 E(e) of the Act have thoroughly been discussed in the said decision. Not only this, the statutory provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t one appellant tolerates an Act or a situation, hence, the view taken by the Commissioner (Appeals) that the liquidated damages as have been received by the appellants towards consideration for tolerating the Act are leviable to service tax under section 66 E(e) of Finance Act is not at all sustainable. 7. In the fact of both the present appeals, we find that the facts are almost identical. There appears nothing for us to differ from the above observations in the afore-mentioned final order of the said Tribunal. Respectfully, following those findings we hold that the amount in question cannot be called as consideration towards declared service as defined under Section 66E (e) of the Finance Act. The confirmation of tax demand qua sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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