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TMI Blog2024 (3) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... y confirmed in the impugned order under the category of 'Construction of Complex service' is not sustainable and hence we set aside the same. The impugned order has confirmed the Service Tax of Rs.3,63,321/- on the differential value of Rs.29,31,401/- during the period 2005-06 to 2008-09 - the calculation has been done unilaterally by the adjudicating authority without giving an opportunity to the appellant to explain the actual difference. Accordingly, it is found that it is required to remand it back to the adjudicating authority to arrive at the differential value after giving an opportunity to the appellant to explain the difference. Hence, the matter is remanded back to the adjudicating authority only for the limited purpose of arriving at the differential value of taxable service of Rs.29,31,401/- worked out by the Department as above. CENVAT Credit availed and utilized by the Appellant on Architectural Consultancy services - HELD THAT:- This is an essential input service required for rendering of the 'Consulting Engineer service rendered by the Appellant. As per the MOU signed on 18.01.2008, it is the responsibility of the Appellant to ensure that the works are e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. The Appellant availed and utilized CENVAT Credit of Rs. 4,92,438/- on Architectural Consultancy services received by them from the Architect Consultancy Firm M/s. Enarch Consultant Pvt. Ltd during the months October 2008, January 2009 and March 2009. The Department proposed to deny the credit of service tax on architectural Service availed by the Appellant on the ground that the same is not covered within the definition of input service in terms of Rule 2 of CENVAT Credit Rules, 2004. 2.2. Accordingly, a Show Cause Notice dated 08.10.2010 was issued to the Appellant collectively demanding service tax of Rs.1,92,19,262/- along with interest and penalty on the above issues. 3. The Notice was adjudicated by the Ld. Commissioner vide the impugned order dated 21.12.2011, confirming the demand of service tax of Rs.90,63,761/- along with interest. CENVAT Credit amounting to Rs.4,92,438/- was also ordered to be recovered. Penalties have been imposed under Sections 76,77 and 78 of the Finance Act, 1994 and under Rule 15 of the CENVAT Credit Rules, 2004. 4. The Appellant submits that they have not rendered the service of 'Construction of complex service'. The amount received by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice . However, the Department was of the view that the Appellant was liable to pay Service Tax on the full amount received by them, under the category of Construction of Complex service as defined under Section 65(105)(zzzh) of the Finance Act, 1994. 7.2. We have perused the MOU dated 08.01.2008 signed by the Appellant with Bihar State Urban Development Agency and the role of the Appellant as 'Executing agency' in the MOU. The scope of works assigned to the Appellant under the MOU are furnished below : (i) Pre-construction stage - Preparing Detailed Project Report (DPR) highlighting various aspects of construction (ii) Construction Phase - Prepare and issue Tender documents in accordance with DPR. Examine and evaluate the bids and conclude contract for execution of works. The Execution Agency shall get the works executed from the start of construction up to commissioning and handing over the project duly completed. The Executing Agency will provide expertise and experience in projects, to execute the entire work as per drawings and specifications. (iii) Post-Construction Phase - Executing Agency shall ensure that the deployed contractor shall rectify all defects within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s way they have not paid service tax on the value of service of Rs.29,31,401/- But in the Show Cause Notice the differential taxable value has been calculated as Rs. 2,87,12,269/- as against Rs. 29,31,401/- for the above mentioned four years. On examination of the calculation table given in the Show Cause Notice the reason is found in the table itself in as much as the differential value has been worked out during 2005-06 and 2007-08 on the basis of suppressed value of service declared in the ST-3 returns during these years in comparison to their actual service value received by them. But the excess declaration of value of service in their ST-3 returns during 2006-07 and 2008-09 in comparison to their actual receipts of taxable service value during these years has not been considered in the taxable value while calculating the total differential value and short payment of service tax thereon. Thus the method adopted for calculation of differential value in the service tax is not correct and fair and the actual differential value during these years is Rs. 29,31,401/- only which has not been disputed by the noticee in their defence reply or otherwise. Accordingly service tax of Rs. 3, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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