9911796707
TMI Blog2024 (3) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... Part-I and the appellant has not shown anything that the period specified was extended by the proper officer, there is no merit in the submission of the learned Counsel that IAR No.07/2010 dated 20.04.2010 covered the period from October December, 2009. It is found from the order of the Adjudicating Authority that the appellant though had the opportunity to substantiate their claim and present documentary evidence in their support, however, they have only presented IAR No.07/2010, which is based on the documents produced by the appellant but the short payment of service tax was calculated only for the period under audit, i.e. April, 2006 to September, 2009 as per serial no.9 of IAR No.07/2010. In absence of any documents placed by the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as according to it, the preceding Audit team must have prepared the audit on the basis of the information presented by the assessee themselves. All these facts and submissions can be made by the appellant before the Adjudicating Authority once again along with the necessary and corroborative documents in that regard. It would be just and fair that the matter is remanded before the Adjudicating Authority, granting liberty to the appellant as well as to the Department to place on record the documents and the Adjudicating Authority may consider the same on merits - appeal is allowed by way of remand. - MS. BINU TAMTA, MEMBER (JUDICIAL) Shri B.L. Sharma, I.R.S. (Retd.) Consultant for the appellant Shri Vishwa Jeet Saharan, Authorised Represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,50,968/- and interest of Rs.97,127/- in the Government Account. On challenge in appeal, the Commissioner (Appeals) by the impugned order confirmed the demand. Hence, the present appeal before this Tribunal has been filed. 3. Having heard both the sides and perused the records. 4. The submission of the learned counsel for the appellant is that prior to the visit of the Audit team in the month of Feb./March, 2011, one Audit team had earlier visited their premises in the month of Feb./March, 2010, whereby IAR No.07/2010 dated 20.04.2010 for short payment of service tax was worked out for the period from April, 2006 to December, 2009. He also submitted that though the period of audit was from April, 2006 to September, 2009 but they extended th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , i.e. April, 2006 to September, 2009 as per serial no.9 of IAR No.07/2010. 7. On the issue of classification of services as to whether they are classifiable under Works Contract Service and liable to make payment of service tax @4.12%, the Adjudicating Authority has noted that the assessee did not produce the bills/invoices required at the time of audit, for verification of the facts that the VAT/Sales Tax has been charged and they failed to produce any evidence to the effect that the cost of materials used/consumed in providing of services was included in the gross amount of taxable service shown as Rs.5,46,48,640/-. Para 4.3.4 from the order of the Adjudicating Authority is reproduced below:- 4.3.4 The fact of the case indicate that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Erection, Commissioning and Installation Services attracting service tax @ 10.30% as alleged in the impugned notice. 8. In absence of any documents placed by the appellant, both the Adjudicating Authority and the Appellate Authority have not found favour with the appellant and hence, confirmed the demand. I feel that it is in the interest of justice that the appellant may be granted an opportunity to place on record the requisite documents, as mentioned above before the Adjudicating Authority as the stand taken by the appellant is that the bills of VAT/Sales Tax on materials used in the Works Contract Service have already been provided by the appellant to the Superintendent, Service Tax. 9. Learned Counsel for the appellant has taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce placed by the appellant on the earlier Audit has been found to be distinguishable by the Adjudicating Authority as according to it, the preceding Audit team must have prepared the audit on the basis of the information presented by the assessee themselves. All these facts and submissions can be made by the appellant before the Adjudicating Authority once again along with the necessary and corroborative documents in that regard. 11. It would be just and fair that the matter is remanded before the Adjudicating Authority, granting liberty to the appellant as well as to the Department to place on record the documents and the Adjudicating Authority may consider the same on merits. 12. The appeal, is allowed by way of remand. [Order pronounced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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