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TMI Blog2024 (3) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... I 680 - CESTAT CHANDIGARH] by this very Bench relying on the Hon ble Apex Court judgment in the case of COMMISSIONER, CENTRAL EXCISE CUSTOMS VERSUS M/S LARSEN TOUBRO LTD. AND OTHERS [ 2015 (8) TMI 749 - SUPREME COURT] Supply of Tangible Goods Service - HELD THAT:- It is found that neither the show - cause notice nor the impugned order records any proof of the possession and effective control of the machinery, supplied by the appellants to M/s L T, was with the appellant themselves. In the absence of such evidence, demand can be sustained only on the basis of averment on the part of the appellant that they have also supplied the operators of the machinery. It is not coming forth in the impugned order as to whether the appellant was paying th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the records of the appellants, a show-cause notice dated 11.04.2012 was issued to the appellants demanding of recovery of service tax of Rs.3,38,92,974/- along with interest and penalty; the show-cause notice was adjudicated vide the impugned order vide which learned Commissioner dropped the demand on account of "Management, Maintenance or Repair Services" and confirmed a demand of Rs.8,54,376/- (Rs.6,37,273 on account of "Commercial or Industrial Construction Service" and Rs.4,26,335/- on account of "Supply of Tangible Goods Service". Hence, this appeal. 3. Shri Naveen Bindal, learned Counsel for the appellant, submits that the demand on "Commercial or Industrial Construction Service" cannot be sustained as the service was a composite co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Ltd. - 2013 (288) ELT 161 (SC). * Hindalco Industries Ltd. - 2003 (161) ELT 346 (Tri. Del.). 5. Shri Aneesh Dewan, learned Authorized Representative for the Department reiterates the findings of the impugned order and submits that the appellants have themselves submitted in reply to the showcause notice that in respect of machinery supplied to M/s L&T, the appellants have also supplied personnel. 6. Heard both sides and perused the records of the case. Regarding the demand in respect of "Commercial or Industrial Construction Service", we find that the issue is settled in favour of the appellants vide Final Order No.60009-60011/2024 dated 08.01.2024 by this very Bench relying on the Hon'ble Apex Court judgment in the case of M/s Larse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession or misstatement. The use of the word "willful" introduces a mental element and hence, requires looking into the mind of the appellant by gauging its actions, which is an indication of one's state of mind. Black's Law Dictionary, Sixth Edition (pp 1599) defines "willful" in the following manner :- "Willful. Proceeding from a conscious motion of the will; voluntary; knowingly; deliberate. Intending the result which actually comes to pass… An act or omission is "willfully" done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done…" 23. In the present case, from the evidence adduced by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demand proof of a high order of credibility." 25. Moreover, this Court, through a catena of decisions, has held that the proviso to Section 28 of the Act finds application only when specific and explicit averments challenging the fides of the conduct of the assessee are made in the show cause notice, a requirement that the show cause notice in the present case fails to meet. In Aban Loyd Chiles Offshore Limited and Ors. (supra), this Court made the following observations : "21. This Court while interpreting Section 11-A o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nity to meet the case of the Department. It was held : ...There is considerable force in this contention. If the department proposes to invoke the proviso to Section 11-A(1), the show-cause notice must put the assessee to notice which of the various commissions or omissions stated in the proviso is committed to extend the period from six months to 5 years. Unless the assessee is put to notice, the assessee would have no opportunity to meet the case of the department. The defaults enumerated in the proviso to the said sub-section are more than one and if the Excise Department places reliance on the proviso it must be specifically stated in the show-cause notice which is the allegation against the assessee falling within the four corners of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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