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TMI Blog2025 (3) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... CCE, & ST, CHENNAI [2018 (4) TMI 1035 - CESTAT CHENNAI] where it was held that 'Hon'ble Supreme Court in Jain Brothers [2012 (7) TMI 935 - SUPREME COURT], state that the cost of goods supplied during repair cannot be added to the value of the taxable service in view of the said exemption'. Subsequently also, the appellants had preferred Service Tax Appeal No.40992/2013 being aggrieved by OIO No.02/ST/COMMR/2013 dated 15.03.2013 passed by the Commissioner of Central Excise, Tirunelveli confirming the demand of service tax made on the allegation of non-addition of the cost incurred by the appellant for replacement/repairs undertaken by them of damaged parts of the containers used in international transportation, in the taxable value - This appeal too was decided in the appellants' favour by placing reliance upon M/S. BAY CONTAINER TERMINAL PVT. LTD., VERSUS THE COMMISSIONER OF G.S.T. & CENTRAL EXCISE [2019 (3) TMI 2081 - CESTAT CHENNAI]. Service tax demand on the basis of reconciliation of the Trial Balance and ST-3 returns - HELD THAT:- The Adjudicating Authority has not furnished any reason for non-acceptance of the appellant's reconciliation statement as well as the cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rised Representative for the Respondent ORDER Per Mr. Ajayan T. V. The appeal has been preferred by the Appellant s assailing the impugned Order in Original No. CHN SVTAX 001 COM 28 2014 15 dated 27.02.2015 where by the Adjudicating Authority has confirmed the demand of service tax of an amount of Rs.1, 71, 36, 794 for the period from October 2008 to June 2012 under proviso to Section 73(1) read with Section 73(2) of the Finance Act, 1994 as well as confirmed the demand of Service Tax of Rs.18, 38, 142/- on account of differential value arising out of reconciliation of the Trial Balance and ST-3 Returns for the period 2010-11 and 2011-12 under proviso to Section 73(1) read with Section 73(2) of the Finance Act, 1994. The Adjudicating Authority has also directed payment of interest on the above mentioned demands and has imposed penalties equivalent to the above confirmed demand amounts, under Section 78 of the Finance Act, 1994. 2. The facts in brief are that the appellants are engaged in rendering 'Storage & Warehousing' and 'Maintenance & repair' services. In the course of such business, the appellants have undertaken replacement of damaged parts of containers used in interna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prospective since the Notification exempts so much of the value of all the taxable services, as is equal to the value of goods and materials sold by the service provider to the recipient of service, from the service tax leviable thereon under section (66) of the said Act, subject to condition that there is documentary proof specifically indicating the value of the said goods and materials. The Ld. Consultant submitted that the appellants undertake repair of damaged parts of the containers used in international transport while they are under customs bond and on replacement of components the said containers along with cargos are exported. It is submitted that the components used in the containers that were exported, are also thus exported and VAT is not leviable on these components which stand exported, under local Sales Tax law. It is also submitted that the adjudicating authority has erred in holding that the value shown in the invoices are to be included in the taxable value under Rule 5 of the Service Tax determination of value Rules, 2006 without considering the exemption under Notification 12/2003 ST as well as the decision in the case of Intercontinental Consultants and Techn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants are engaged in providing 'Repair and Maintenance Service' with reference to damaged sea containers meant for International Goods Transport. The repair work undertaken by the appellants is with reference to the containers which are covered by the Customs Bond intended for re-export. The lower authority denied the exemption on the material part on the ground that no supporting evidence of sale of goods during the course of providing such repair service by the appellants. 3 The claim of the appellants was supported by the invoices raised by them. In fact, such invoices for repair charges indicate along with details of the container numbers, labour amount and material amount separately in US$ The service tax payable on the services (labour amount) is also indicated. 4. The Ld. AR contested that the evidence of purchase of such materials along with the supply to the service recipient with full details are lacking. We note that the invoices produced sufficiently indicate the complete details of service and materials undertaken. In fact, the entry of materials used is also can be seen from the illustrated invoices submitted. In this connection, we also note the clari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss account with the values shown in the ST-3 returns, for an earlier period was dropped by the adjudicating authority vide OIO No.26/JC/ST/2008 dated 22-10-2008 by recording a finding at para 10.5 thereof as " For certain customers like CAI and TRITON based at Mumbai, service tax is paid on centralised basis at Mumbai for maintenance and repair services rendered at various places including Tuticorin. Since service tax has already been paid on the services rendered to CAI and TRITON demanding service tax on the said services mentioned ibid will only lead to double taxation." 9. In the present appeal, we also find that the Adjudicating Authority has not furnished any reason for non-acceptance of the appellant's reconciliation statement as well as the certificate of the Chartered Accountant that the appellant has relied upon and adduced as evidence for discharge of its tax liabilities with respect to the bills issued from Mumbai office apart from stating that the appellant has not produced evidence to substantiate their claim. The Adjudicating Authority has not recorded any categorical finding as to what exactly are the documents which he desired to see for his satisfaction. Such sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar & Ors. - (2005) 8 SCC 760 that "it 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." In such circumstances, the Department could not have invoked the extended period of limitation and the Appellants succeed in their appeal on this count also. 11. It is also a pertinent fact that the respondent has not brought to our notice any appeal preferred against this Tribunal's aforecited two orders in the appellants' own case involving the issue of entitlement to the benefit of the notification 12/2003 ibid. Thus, it appears that the issue has attained finality inter-se the parties. Therefore, we do not find any fresh reasons or new grounds that would compel us to deviate from the ratio of the earlier decisions of this Tribunal in the appellants' own case. In view of the aforesaid discussions, the demand of service tax, interest thereon and penalties imposed on the appellants are untenable and the order in original impugned herein confirming the above demand of service tax, wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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