9911796707
TMI Blog2024 (3) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... ELD THAT:- There is no dispute that there is composite contract for sale of machinery by a foreign supplier and total value represented the sale value of the machine even though it includes Erection, Commissioning and Installation Service. Therefore, the total value is a sale value and in case sale-purchase transaction, no service tax can be demanded. Moreover, it is also an admitted fact that the service was not provided by the supplier of machine whereas the Erection, Commissioning and Installation activity was carried out by the independent entity on behalf of M/s. Ashling Impex Pvt. Limited therefore, even if by imagination it is considered that the appellant have received Erection, Commissioning and Installation Service it is from Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commissioning provided by the supplier s technician at the place of the appellant, is included in the value of imported machine which was in Indian Rupees was Rs. 1,51,18,866/-. The case of the department is that the appellant have received the service of Erection, Commissioning and Installation Service of the imported machinery and as per the Notification No.1/2006-ST dated 01.03.2006, 33% of the total value of import represent the service portion and accordingly on Rs. 49,89,226/- the appellant is required to pay service tax at the rate 12.36% which amounts to Rs. 6,16,668/-. The Adjudicating Authority confirmed the demand along with interest and penalty. Being aggrieved by the order-in-original dated 11.11.2016, the appellant filed appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the knowledge of the department, hence there is no suppression of facts and the demand is time barred. In support he relies upon the following judgments: (a) Rahil Air Bubbles Pvt. Limited vs. CCE ST, Rajkot - 2019(11) TMI 565-CESTAT Ahmedabad (b) Final Order No.50639/2017 dated 20.01.2017 passed by the CESTAT, New Delhi in case of M/s. Bhavik Terryab (c) Allengers Medical Systems Limited vs. CCE, Chandigarh 2009(14) STR 235 (Tri.-Del.) (d) CCE, Vapi vs. AlidharaTextool Engineers Pvt. Limited 2009 (239) 334 (Tri.-Ahmd.) (e) Alidhara Texspin Engineers vs. CCE, Vapi 2010(20) STR 315 (Tri.-Ahmd.) (f) Radhe Renewable Energy Development Pvt. Limited vs. CCE ST, Rajkot 2015(37) STR 388 (Tri.-Ahmd.) (g) The Orient Processors vs. CCE ST, Triu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the import of machine was made through Customs channel and customs duty was discharged at the total value, the objection was raised by the audit party from the record of the appellant, therefore there is no suppression of fact on the part of the appellant. The machine was imported in March 2012 whereas the show cause notice was issued invoking extended period on 29.01.2016 therefore, the entire demand is time-barred. 5. On both the issues, the judgments cited by the appellant directly support their case. Therefore, we are of the considered view that demand is not sustainable on merit as well as on limitation. Hence the impugned order is set-aside and the appeal is allowed. ( Pronounced in the open court on 19. 02. 2024 ) - - TaxTMI - TM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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