9911796707
TMI Blog2024 (5) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... T:- In the present case, without any dispute, the Appellant has divided the contract into two parts and paid any Excise Duty on 70% of the value treating the same as the value of goods supplied. For the balance 30% value of the contract, they have not paid any Excise Duty. For the second portion of this contract value amounting to 30% realization by the Appellant would in fact should be termed as service and the Department should have demanded Service Tax on the same. Considering the fact that the main contractor HCC was awarded the contract under Works Contract and both materials and services are involved even in respect of the goods to be cleared by the Appellant, it is clear that designing, installation etc. form part of the services ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is not sustainable against the Appellant company, the question of imposing penalty on the Director would not arise. Accordingly, the penalty imposed on him is also set aside. Appeal allowed. - HON BLE SHRI R. MURALIDHAR , MEMBER ( JUDICIAL ) And HON BLE SHRI K. ANPAZHAKAN , MEMBER ( TECHNICAL ) Shri Aditya Dutta , Advocate for the Appellant Shri S.S.Chattopadhyay , Authorized Representative for the Revenue ORDER Per : R. MURALIDHAR : The Appellant is engaged in the manufacturing of excisable goods viz Bridge Bearing/Section falling under Central Excise Tariff subheading No.7308 90 90. They have sent their goods to M/s. Hindustan Construction Co. Ltd. (hereinafter referred to as HCC ) for usage in Bandra-Worli Sea Link Project Approach B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plying to ultimately installing the same in the project. They have undertaken the costing involved and they have come to a conclusion that about 70% would be the material cost and balance would be on account of installation and other charges. Accordingly, they were raising one Bill for the material cost @ 70% of the contract value and they were paying Excise Duty and clearing to HCC. In respect of the installation undertaken, subsequently they were raising the Bill under supplementary invoice for the balance 30%. Since there was no supply of material involved in the supplementary invoice, the Appellant was not required to pay any further Excise Duty. In order to link the two activities together, they were raising the supplementary invoice w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manufactured product. Therefore, without prejudice to their submissions that they are not required to pay the excise duty, as an alternate pleading, since the issue is purely that of service, the Department is in error in adding the same to the value of the manufactured goods. In fact if they wished to take up any proceedings, the Show Cause Notice should have been issued for recovery of Service Tax for the 30% service portion, which was not done in this case. Therefore, even on this count, he submits that the confirmed demand is liable to be set aside. 6. The Ld.AR for the Department submits that the contract details very clearly shows that they are inclusive of Excise Duty, Education Cess etc.. Therefore, the entire value received by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clause 99 that all drawings and documents provided by the Appellant would become the property of the main client MSRDC. From the Annexure-4 of this Agreement it is seen that the entire contract is towards works contract which would be paid by HCC. Since the work contract is involved, it clearly shows that there would be supply of material as well as supply of services. In the present case, without any dispute, the Appellant has divided the contract into two parts and paid any Excise Duty on 70% of the value treating the same as the value of goods supplied. For the balance 30% value of the contract, they have not paid any Excise Duty. We are of the view that for the second portion of this contract value amounting to 30% realization by the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y from the appellant. But it is noted that the appellants are registered manufacturer. As such they have been filing their Monthly Returns showing the value adopted by them. Even under the self assessment regime, scrutiny of the ER-1 Returns are still to be taken up by the Range officials. There is nothing to indicate that the self-assessed ER-1 were taken up for scrutiny and any query was raised towards the assessable value adopted by the appellant for their clearances. Therefore, we set aside the confirmed demand for the extended period. 12. Since we are holding that the confirmed demand is not sustainable against the Appellant company, the question of imposing penalty on the Director would not arise. Accordingly, the penalty imposed on h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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