SPACE AGE ASSOCIATES Vs. UNION OF INDIA

JUDGEMENT

(1.) By this Appeal under Section 35G of the Central Excise Act, 1944 r/w Section 83 of the Finance Act, 1994, the appellant assails the order dated 12 September, 2012 (2014 (33) S.T.R. 398 (Tri. - Mumbai)) of the Customs, Excise & Service Tax Appellate Tribunal (in short "Tribunal"). The Tribunal by the impugned order directed the appellant to pre-deposit an amount of Rs. 1 Crore out of total demand of Service Tax of Rs. 6.35 Crores and equivalent penalty of Rs. 6.35 Crores aggregating to Rs. 12.70 Crores for the purpose of entertaining appellant's appeal on merits. The appellant provides taxable service of erection, commissioning and installation of power stations to various Electricity Boards. The appellant is registered with Service Tax Department and was paying Service Tax in respect of the services rendered by them to its customers in respect of services rendered in execution of the supply erection and commissioning of power station. The contract entered into by the appellant with its customers is a composite contract including supply of goods and rendering of services.

(2.) On 18 October, 2010, a show cause notice was issued to the appellant, calling upon it to show cause to the Commissioner of Central Excise as to why Service Tax amounting to Rs. 635 Crores on account of short payment of Service Tax for the period 2005-06 to 2009-10 should not be recovered. The extended period was invoked alleging that there was suppression of facts on the part of the appellant with intent to evade payment of Service Tax. The appellant responded to the notice pointing out that the extended period is not invocable as all facts were within the knowledge of the respondents/revenue. Besides, the demand has been erroneously computed taking into account the balance sheet figures for sales which includes sales made by the appellant in respect of activity of trading in goods. On merits, it was inter alia contended that in view of the benefit of Notification No. 12/2003-S.T. : , dated 20 June, 2003 being available to them resulting in the value of goods sold for the execution of the contract being excluded, no differential duty as demanded/is payable.

(3.) However, the Commissioner of Service Tax by his order dated 30 March, 2012, did not accept the appellant's contention. The evidence led by the appellant in support of its contentions that goods had been supplied in the execution of contract for erection and commissioning of power stations for purposes of claiming Notification No. 12/2003-S.T. : , dated 20 June, 2003 was not accepted. This was on the ground that the evidence of supply of goods was not to his satisfaction. Consequently, the demand of Rs. 6.35 Crores was confirmed along with equivalent penalty under Section 78 of the Finance Act, 1994.