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2024 (11) TMI 401
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....a Rao & Company Pvt. Ltd., (the appellant) were engaged in providing various services viz. Mining Service, Site Formation and Clearance Service, Maintenance or Repair Service, Works Contract Service, Transportation Service etc to M/s. Utkal Alumina International Ltd (hereinafter referred as UAIL or the service recipient) Rayagada, Odisha. The appellant carried out taxable as well as exempt works such as Mining works, works in relation to Ash Pond, Red Mud Storage Pond, construction of boundary wall for Red Mud Storage Pond, construction of check dam, construction of road bridge, Repair and maintenance of road, construction of embankment on the railway siding, transport of Bauxite ore from Mines top to the Plant/Refinery etc. In connection with carrying out the mining activity of Bauxite Ore, the appellant entered into a contract dated 14.05.2012 with the service recipient. After about 3 years of service activity, the appellant closed their business operations from November, 2015 onwards, consequent to transfer of Baphilimali Mines Development Work Agreement dated 14.05.2012, entered with the service recipient, to M/s. Mythri Infra, Visakhapatnam, in terms of an Assignment and Novat....
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....demand on capital goods (confiscated machinery) under Rule 14 of CENVAT Credit Rules, 2004 read with Section 73 of the Finance Act, 1994. 3.51 crores 4 CENVAT Credit demand on capital goods under Rule 14 of CENVAT Credit Rules, 2004 read with Section 73 of the Finance Act, 1994. 3.22 crores 5 CENVAT credit demand on inputs and input services under Rule 14 of CENVAT Credit Rules, 2004 read with Section 73 of the Finance Act, 1994. 69.07 lakhs Total 47.19 crores 2.3. The amounts paid during the course of investigation i.e., Rs. 1,86,41,324/- along with interest of Rs. 29,59,357/- and Rs. 3,25,57,169/- along with interest of Rs. 56,06,076/- were appropriated towards the duty demands. 2.4. The ld. adjudicating authority has imposed the following penalties against the appellants: - (i) M/s. K V Mohana Rao and Company Pvt. Ltd S.No. Section Penalty imposed i Penalty in terms of Section 78 of the Finance Act, 1994. Rs. 47.19 crores ii Penalty under Section 77 ibid Rs. 10,000/- iii Late Fees under Section 70 ibid Rs. 16,800/- (ii) An amount of Rs. 3.51 crores have been imposed as penalty under ....
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....ding to them, are either not taxable or exempt services or double demands. Accordingly, the appellant has dealt these contested issues under different heads, such as, Bauxite Ore Transportation, reimbursable expenditure on diesel, double demands on advances, clearly exempt services like., road works, railway works, service tax demand on material supply per se etc. 3.3. During the course of the Hearing and in their written submissions, the appellant made a detailed presentation of their stand by way of facts and figures drawn from their financial records to sustain their view point. They contended that the Revenue had inflated the demand to abnormal proportions. In this regard, they contended that the Revenue reopened clearly established issues like tax liability on free supplies, reimbursable expenditure, railway works, roads which are all squarely covered by settled case laws. In respect of double demands, it is their contention that ignoring the trade practice and the clear documentation of the appellant, the Revenue demanded tax twice on the advances amounting to Rs. 10.68 crores. The first demand is towards - once when the advances were received and for a second time on the ....
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.... in Appeal No.ST/75673/2021 has decided the same issue vide Final Order No. 75972 of 2024 dated 02.05.2024 [CESTAT, Kolkata] wherein the Tribunal has set aside the demand on free supply of materials with regard to M/s. Mythri Infra in respect of the same Mining Contract assigned to them in terms of an Assignment and Novation Agreement dated 29.10.2015; the said appeal covers all the issues as of the present appeal, in relation to free supply material. Accordingly, they submitted that the demand of service tax confirmed in the impugned order on this count is not sustainable. 5. Service tax demand: Regarding the demand of service tax of Rs. 33.84 crores, the appellant submits that this is a combined demand covering service tax on various categories. The break-up of this demand and the submission of the appellant on these demands confirmed in the impugned order are as below: 5.1. Bauxite Ore Transportation: Demand Rs. 9.03 crores: This demand has been confirmed in respect of the Goods Transport Agency (GTA) service rendered by the appellant on reverse charge basis. The appellant submits that the demand of service tax on this category from them is not sustainable as they are n....
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....ignored the submissions and confirmed the demand of service tax under this category. 5.3. The invoice no. 2 dated 06.09.2014 inducted by the Ld. Adjudicating Authority (para 5.35(i) of the O- I-O in Page No. 247 of Vol. I) to conclude that the appellant have collected service tax on this activity is not factually correct since the service recipient did not honour the said invoice in toto. The corresponding Payment Advice No.51407542 dated 24.10.2014 confirms that only service consideration i.e. Rs. 1,60,67,790/- is paid but not the service component (page no. 156 of Vol. III). 5.4. It is submitted that the demand confirmed on the basis of a single invoice without verification of all the invoices is not legally sustainable (even in respect of this single invoice, the Department could not prove that the appellant has actually collected the service tax, except making a mere allegation). In this regard, the appellant intends to rely on the following decision of the Hon'ble CESTAT Kolkata: (i) M/s. R.S. Ispat Pvt. Ltd. Versus Commissioner of Central Excise, Kolkata-IV and Shri Radhe Shyam Agarwal, Director M/s. R.S. Ispat Pvt. Ltd. Versus Commissioner of Central Excise, K....
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....gh the invoice value was of the order of Rs. 20,76,92,552/- which includes advances amounting to Rs. 18,88,65,202/- and that the same were adjusted from the final bill and the remaining amount only was paid as seen from the said payment advice. The appellant adds that they paid this service tax to the Revenue in the normal course and submitted proof thereof - tax payment challan. 6.2. Thus, the appellant submits that there is no service tax liable to be paid on these expenditures for diesel reimbursed by the service recipient upto 14.05.2015. Accordingly, the demand of service tax of Rs. 4.78 crores confirmed in the impugned order on this count is not sustainable. 7. Demand on advances: Rs. 10.68 crores: 7.1. The appellant submits that this is a double demand, wherein initially, when the advances were received, demands were raised on such advances, subsequently, service tax is demanded for the second time when they raised the final bill on the gross value- which value is inclusive of the said advance component. The appellant submits that when they raise the final bill, the advance component is adjusted and the remaining amount only was paid to them; this being the factual ....
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....e exemption provided under Notification 25/2012 is available to them. 9.2. The other ground based on which the Revenue has confirmed the demand is that the appellant has billed service tax in respect of this activity and hence it is alleged that the appellant collected service tax on this activity. In this regard, the appellant submits that even though they billed service tax in a few cases, the service recipient did not pay service tax even on a single instance; the Revenue has not brought in any evidence to substantiate the allegation that the appellant has actually collected the service tax. As the activity of construction of road is exempted from payment of service tax as per Notification 25/2012- ST, the appellant submits that the demand confirmed on this count is not sustainable. 9.3. In support of their contention that construction of road used by general public is not subject to service tax, the appellant relied on the following decisions. Commr. of Cus. & C. Ex., Raipur vs. National Project Construction Corpn. Ltd. [2020 (42) G.S.T.L. 75 (Tri. - Del.)] Rajendra Singh Bhamboo vs. Commr. of C. Ex. & S.T., JAIPUR-I [2019 (22) G.S.T.L. 278 (Tri. - Del.)....
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....f Central Excise, Raipur vs. Anand Construction [2017 (51) S.T.R. 435 (Tri. - Del.)] ii. In Re: Rites Limited [2019 (20) G.S.T.L. 657 (A.A.R. - GST)] iii. Commr. of Cus. &C.Ex., Raipur vs. National Project Construction Corpn. Ltd. [2020 (42) G.S.T.L. 75 (Tri. - Del.)] iv. Rajendra Singh Bhamboo Vs. Commr. of CEx& ST, Jaipur-I [2019 (22) G.S.T.L. 278 (Tri. - Del.)] 11.3. Accordingly, the appellant submits that the demand of Rs. 49,37,297/- confirmed in the impugned order is not sustainable. 12. Erection, Commissioning and Testing - Double Demand - Rs. 92.46 lakhs: 12.1. In this regard, the appellant makes the submission that the demand raised in the instant notice on this issue against S. No. 68 of Annexure - A3 and S. No. 75 of Annexure - A4, has already been covered in the Show Cause Notice dated 17.10.2016 (indicated at last two entries of Annexure - 9 to the said Show Cause Notice) and hence it is a double demand. According to the appellant, this fact has been accepted in para 108 of the present notice that income relating to construction of Red Mud Pond, covered by the work order no. 11/10639/01/1757 is excluded in these proceedings on the gr....
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....le demand as the same Payment Advice has been relied upon for both the demands (S. No. 68 of Annexure - A3 and S. No. 3 of Annexure - A4). The appellant also submits that values of the demands at S. No. 68 of Annexure - A3 and S. No. 75 of Annexure - A4 (which demands are already covered by notice dated 17.10.2016 and dealt at para 12 supra) put together match to the value of the work order cited above. 14.2. Accordingly, the appellant submits that the double demand of Rs.28,38,310/- confirmed in the impugned order is liable to be set aside. 15. Confirmation of Demand of Rs. 78.96 lakhs: 15.1. It is their submission that this is a double demand on the advances received and the tax thereon was paid earlier; this demand relates to S. Nos. 12, 16 & 17 of Annexure - A3. The total demand of the 3 invoices shown as liability is Rs. 1,50,74,782/- (36,78,374 + 68,19,229 + 45,77,179); In respect of the above 3 transactions, the appellant obtained advances amounting to Rs. 7.47 crores (2cr + 4.47cr + 1cr) during the year 2011-12; the appellant paid service tax amounting to Rs. 46,85,866/- under challan no. 127 dated 30.07.2012 and Rs. 22,89,746/- under CENVAT Credit on the said amou....
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....e - A3 and S. No.21 of Annexure - A4, it is indicated as Erection & Commissioning Service against S. No. 22 of Annexure - A4. In all the cases, the Revenue calculated the demand on 100% of the value. In the Notice dated 24.09.2012 issued by DGCEI, the work orders relating to Red Mud Pond were classified under Works Contract Service; the Notice dated 17.10.2016 also held the activity to be Works Contract Service. Accordingly, the appellant paid tax on 40% of the value after availing abatement available under Works Contract Service, as against the claim of the Revenue i.e., quantification of the demand on 100% of the value in the present proceedings, which is not correct; While the Revenue calculated the tax on the total value, the appellant computed tax on 40% of the value, applicable to Works Contract Service. It is submitted that the appellant had collected and correctly paid service tax as per the provisions relating to Works Contract Service on these transactions. In proof thereof, the related payment advices issued by the service recipient were provided by the appellant negating the claim of the Revenue. Accordingly, the appellant submits that the demand confirmed on this count....
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.... 332886315 19.2. The appellant submits that the difference of Rs. 55.57 lakhs pertains to the income from non- taxable activity. However, the appellant submits that they are not in a position to substantiate the service tax liability on this balance amount with proper documentation as the unit had closed its operations and offices way back in the year 2015. The appellant submits that their grievance before the Ld. Adjudicating Authority was that the Investigating Agency computed the demand arbitrarily, the Ld. Adjudicating Authority, without addressing the submissions and evidence, also confirmed the demand of Rs. 33.84 crores arbitrarily; however, they have contended that the demand in respect of this differential amount fails on limitation front; the appellant submits that the present notice was issued on the heels of the earlier notice dated 17.10.2016 covering the same period; the said notice has clearly gone on record that the assessee was providing exempt/non-taxable services like bauxite ore transportation, reimbursable expenditure, road works etc., and yet did not question the said clearances; the three successive audits conducted during the relevant period also did no....
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....apital goods, Rule 3(5A)(a) of the CENVAT Credit Rules is not attracted as held in the following judgments: i. L.G. Balakrishnan & Bros. Ltd Vs. Commissioner of Central Excise, Trichy [2016 (340) ELT 708 (Tri. Chennai)] ii. Hero Motors Ltd. Vs. Commissioner of C.Ex., Ghaziabad [2014 (310) E.L.T. 729 (All.)] iii. Dalmia Cements (Bharat) Ltd. Vs. Commissioner of C.Ex., Tiruchirappalli [2008 (224) E.L.T. 484 (Tri. - Chennai)] iv. Commissioner of C.Ex., Tiruchirappalli Vs. CESTAT, CHENNAI [2015 (323) E.L.T. 290 (Mad.)] v. Commissioner of C.Ex., Cus. & S.T., Raipur Vs. Bhilai Steel Plant [2018 (12) G.S.T.L. 28 (Chhattisgarh)] 20.3. They also submit that in the case of J. K Spinning and Weaving Mills Ltd and Another Vs. Union of India and Others [1987 (32) E.L.T. 234 (S.C.)], relied on in the above decision of Hon'ble Chhattisgarh High Court, the Hon'ble Supreme Court held that "removal" means physical movement of the goods and it contemplates shifting of a thing from one place to another; In other words, it contemplates physical movement of goods from one place to another; in the present case, there was no physical movement of the capital ....
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....he appellant for payment of the amount in terms of Rule 3(5A) of the CENVAT Credit Rules; hence the appellant paid an amount of Rs. 3,25,57,169/- towards the demand along with interest thereon amounting to Rs. 56,06,076/- in cash vide challan dated 22.12.2016; The said amount was paid during the investigation proceedings along with interest much prior to the issuance of the notice. 20.8. In view of the above said legal position, the appellant submits that confiscation of the machinery, imposition of redemption fine of Rs. 50 lakhs, demand of Rs. 3.51 crores from the appellant in addition to imposition of mandatory penalty of Rs. 3.51 crores on them and imposition of mandatory penalty of Rs. 3.51 crores on M/s. Mythri Infra are all liable to be set aside. Thus, the appellant prayed for return of the amount of Rs. 3,25,57,169/- towards the demand along with interest thereon amounting to Rs. 56,06,076/- paid in cash vide challan dated 22.12.2016, treating the same as a deposit made during the investigation. 21. Confirmation of CENVAT Credit demand of Rs. 3.22 crores on capital goods: 21.1. The appellant submits that part of this demand of Rs. 3.22 crores, i.e. Rs. 1.36 crores....
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.... are not contesting the remaining demand of Rs. 1.86 crores confirmed in the impugned order. 22. Confirmation of CENVAT Credit demand of Rs. 69.07 lakhs on inputs and input services: 22.1. The Ld. adjudicating authority confirmed this demand on the ground that the appellant had taken excess credit in certain cases and in some other cases availed credit either without supporting documents or in the absence of proper duty payment documents. The demand was raised for 3 years - 2013-14, 2014- 15 & 2015-16 and the demand details are provided in the Annexures - C-1, C-2 & C-3 respectively as Rs. 43,66,149/-, Rs. 12,15,906/- & Rs. 13,25,621/- for the respective years. The appellant contested this demand on merit as well as on the ground of limitation, in view of one more Notice dated 17.10.2016 issued to the appellant by invoking extended period and the successive audits conducted by the Revenue during the relevant period. The appellant submits that CENVAT Credit availment of the appellant-company was examined by the audit wing of the Revenue and it chose not to raise any other demand on this front, except the demand of Rs. 11,19,214/- wherein the appellant was required to reverse t....
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....d beyond the ambit of show cause notice. Hence, it is submitted that the impugned penalty on M/s. Mythri Infra is not legally sustainable; No notice under the proviso to sub- Section (1) of Section 73, has been served on M/s Mythri Infra. Hence, it is contended that they are not liable to penalty in terms of Section 78 of the Finance Act. 24.1. Shri. Srinivasa Rao, GPA Holder & Authorized Signatory submitted that he is neither a Director, Manager, Secretary in the company. He was merely a General power of Attorney Holder. A General power of Attorney holder is merely an agent who acts on behalf of and as per the instructions of the principal. Hence, he is not liable to penalty in terms of Section 78A of the Finance Act, 1994. This view has also been accepted by the Hon'ble Supreme court in the case of Suraj Lamp and Industries Pvt Ltd vs State of Haryana & Anr (2012) 1 SSC 656. From the alleged non- payment of service tax by KVMR, the intention of the appellant to evade service tax cannot be presumed without any evidence on his involvement and intention to evade tax. Evasion of service tax needs to be distinguished from failure to pay service tax. There was no mala fide on th....
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....verification before determining their eligibility for the exemption. 25.1. Regarding confiscation of the capital goods, it is his submission that as per the Novation Agreement dated 29.10.2015, all assets have been transferred to M/s. Mythri Infra; Since the appellant has sold these 48 numbers of capital goods to Mythri Infra, they are liable to reverse CENVAT Credit proportional to the depreciated value; Since, the appellant has not reversed the proportional CENVAT credit, the ld. adjudicating authority has rightly confiscated the capital goods and imposed redemption fine and penalty on Mythri Infra in the impugned order. 25.2. Regarding invocation of extended period of limitation to demand service tax, he contends that the issues involved in the Show Cause Notice dated 17.10.2016 issued to the appellant are totally different from the issues involved in the impugned order; since, the appellant has not disclosed these details in the ST-3 returns filed by them, extended period has been rightly invoked to confirm these demands. 25.3. Subsequent to personal hearing, the Ld. Authorized Representative of the Revenue made a written submission substantiating the confirmation of t....
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.... CCR 2004 payable on capital goods sold without payment of appropriate amount along with confiscation and penalty, the Ld. Departmental Representative submitted that this issue has been dealt by the Adjudicating authority in para 5.45 to 5.48 giving clear findings with legal propositions which were not refuted by the Appellant before the Tribunal. In this regard, the he relied upon the decision in the case of CCE, Belgaum Vs Associated Cement Co Ltd [2009(236) ELT 240(Kar)] wherein the Hon'ble High court of Karnataka has decided a similar issue in favour of department. The Kolkata Bench of CESTAT also decided a similar issue in favour of Revenue in the case of M/s J K Paper Vs CCE, Bhubaneshwar [2014 (309) E.L.T. 359 (Tri. - Kolkata)] by following above decision of Hon'ble High Court of Karnataka. Applying the principle laid down in Allied Air-Conditioning and Arasmeta Captive Power Company's case, the Hon'ble court observed that the word, 'removal' is to be understood according to the context in which the word is used. It does not always mean physical removal only. The ratio laid down by the Hon'ble Karnataka High Court in Associated Cement's case is applicable to the present case....
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.... that detailed findings in this regard has been given by the Ld. Adjudicating Authority in para 5.54 of the Impugned Order. He also submits that the appellant has deliberately availed benefits of notifications without fulfilling the terms and conditions laid therein. They charged and collected service tax but not deposited to the government exchequer deliberately. They resorted to maintain false books of accounts by non-accounting huge turnover in their audited P & L account. They availed and utilized excess CENVAT Credit on capital goods, inputs and input services and a major portion of the same is admitted by them. There are sufficient evidences on record to show their mala fide intention. Accordingly, he justified the invocation of extended period of limitation. In this regard, he relied upon Apex Court's decision in the case of UOI Vs Dharmendra Textile Processors [2008 (231) ELT 3 (SC)] and in the case of Rajasthan Spinning and Weaving Mills [2009 (238) ELT 3 (SC)]. He also relied upon the decisions of Hon'ble High Court in the case of CCE Vs Haryana Industrial Security Services [2011 (21) STR 210 (P & H)] and in the case of CCE, Mangalore Vs K Vijaya C Rai [2011 (21) STR 224 ....
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.... from the place where they were initially located. We observe that this position is evident from the Panchanama dated 14.12.2016 under which the seizure of the said machinery was effected. The Panchanama clearly reveals that the investigating agency has effected the seizure from the same place where the impugned capital goods were located and used by the appellant. We also observe that no invoice was issued as there was no physical removal of the capital goods. Even if there is a sale involved in the transaction, the question of reversal of CENVAT Credit on the depreciated value in terms of Rule 3(5A) of the CCR 2004, would arise only at the time of removal of the capital goods. It is a fact on record that the capital goods were physically not removed from the premises where they were located prior to the Novation Agreement. 27.2. We observe that the impugned order has sought reversal of proportional credit on the depreciated value as per Rule 3(5A)(a) of the CENVAT Credit Rules. For the sake of ready reference, the said Rule is reproduced below: 3(5A) (a) If the capital goods, on which CENVAT credit has been taken, are removed after being used, the manufacturer or prov....
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....their location to another place. The relevant part of the said decision is reproduced below: "38. It is submitted on behalf of the appellants that the Explanations to Rule 9 and Rule 49 are ultra vires the provision of Clause (b) of sub-section (4) of Section 4 of the Act inasmuch as "place of removal" as defined therein, does not contemplate any deemed removal, but a physical and actual removal of the goods from a factory or any other place or premises of production or manufacture or a warehouse etc. This contention is unsound and also does not follow from the definition of "place of removal". Under the definition "place of removal" may be a factory or any other place or premises of production or manufacture of the excisable goods etc. The Explanations to Rules 9 and 49 do not contain any definition of "place of removal", but provide that excisable goods produced or manufactured in any place or premises at an intermediate stage and consumed or utilised for the manufacture of another commodity in a continuous process, shall be deemed to have been removed from such place or premises immediately before such consumption or utilisation. Clause (b) of sub- section (4) of Sectio....
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....hough the same were transferred to M/s. Mythri Infra. We agree with the inference of the Ld. Authorized Representative of the Revenue that the word 'removal' is to be understood in the context in which it is used. In the present context, there was no need for removal of the machinery as the same were continued to be used by M/s. Mythri Infra, to execute the same Work Order. Thus, we observe that the 'removal' of the machinery was not even intended in the Novation Agreement. Accordingly, we hold that the decisions referred by the Ld. Departmental Representative are not relevant to the present case on hand. 27.7. In view of the above discussions and by relying on the decisions cited above, we hold that the confiscation order in respect of the capital goods [48 in number] is not legally sustainable. Since, the confiscation of the capital goods is legally not sustainable, the question of imposing redemption fine does not arise. Accordingly, we set aside the confiscation of the 48 numbers of capital goods and the redemption fine imposed in the impugned order. We also set aside the demand of Rs. 3.51 crores on the impugned capital goods and the mandatory penalty imposed on M/s K V Moh....
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....ands figuring in Annexure - B2 are double demands since they already exist in Annexure - B3. The appellant submitted that this position is clearly explained in the form of a detailed statement on Pages 137 - 138 of Vol. I. For a fair appreciation of this issue, the said statement is reproduced hereunder. Invoice No& date Description of goods Details of Demand Sl. No of Anne xure -B-2 Demand Sl. No of Annex ure - B-3 Demand 48/25.08.2012 BEML BH 60M Rear Dumper 1 1013520/- 32 1368252/- 50/27.08.2012 BEML BH 60M Rear Dumper 2 1013520/- 33 1368252/- 52/27.08.2012 BEML BH 60M Rear Dumper 3 1013520/- 34 1368252/- 54/28.08.2012 BEML BH 60M Rear Dumper 4 1013520/- 35 1368252/- 65/30.08.2012 BEML BH 60M Rear 5 1013520/- 36 1368252/- 66/31.08.2012 BEML BH 60M Rear 1 1013520/- 37 1368252/- 7888967/7.9.2012 EC700C L (Volvo Excavat or) 7 2419334/- 38 2244281/- 200550/15.9.2012 IDM 30 Blast hole Driller 8 12,54,540/- 39 846815/- DS/121079/31.10.2012 Escorts Hydra Crane 9 69,216/- 40 93442/- 101035/30.06. 2011 ....
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....rse of investigation, much before issuance of the notice. It is their plea that in view of the provisions of Section 73(3) of the Finance Act, 1994, the proceedings conclude and there is no need for the Revenue to issue any notice. This view has been held in the case of Shri Selvakumar Textiles Vs. Commissioner of C.Ex., Coimbatore [2005 (188) E.L.T. 334 (Tri.-Chennai)]. We observe that the appellant has paid this Rs. 1.86 crores before issue of the notice. As this amount is not being contested by the appellant, we uphold the demand of service tax of Rs. 1.86 crores along with interest. We uphold the appropriation of this amount along with interest in the impugned order. As the appellant has paid this Rs. 1.86 crores along with interest before issue of the Notice, in terms of Section 73 (3) of the Finance Act 1994, we hold that no penalty is imposable on the appellant on this amount of Rs. 1.86 crores. Demand of Rs. 5.91 crores on free supply material: 29. Regarding the remaining demands confirmed in the impugned order, we observe that demand of service tax of Rs. 5.91 Crore has been confirmed in the impugned order on account of materials supplied free of cost by the service ....
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....it for providing the taxable service. Since, M/s. ONGC was not required to make payment of fuel to the appellant, its value cannot be added to the taxable value both under the un- amended and amended provisions of Section 67 ibid. Further, the appellant herein had received the entire consideration for provision of service in monetary terms. Hence, it cannot be said that it was not properly able to determine the value of taxable service, in order to attract the provisions of Rule 3 (b) of the Service Tax (Determination of Value) Rules, 2006. Similarly, the provisions of Rule 5 ibid also would not attract in this case inasmuch as no cost of fuel was charged or billed by the appellant to the recipient of service. 8. We find that the issue arising out of the present dispute is no more res integara, in view of the judgement of Hon'ble Supreme Court in the case of M/s. Bhayana Builders (P) Ltd.(supra), relied upon by the learned Advocate for the appellant. The relevant paragraphs in the said judgement are extracted herein below: 11. As already pointed out in the beginning, all these assessees are covered by Section 65(25b) of the Act as they are rendering 'construction ....
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....s payable but the amount charged has to be necessarily a consideration for the service provided which is taxable under the Act. By using the words "for such service provided" the Act has provided for a nexus between the amount charged and the service provided. Therefore, any amount charged which has no nexus with the taxable service and is not a consideration for the service provided does not become part of the value which is taxable under Section 67. The cost of free supply goods provided by the service recipient to the service provider is neither an amount "charged" by the service provider nor can it be regarded as a consideration for the service provided by the service provider. In fact, it has no nexus whatsoever with the taxable services for which value is sought to be determined" 13. A plain meaning of the expression 'the gross amount charged by the service provider for such service provided or to be provided by him' would lead to the obvious conclusion that the value of goods/material that is provided by the service recipient free of charge is not to be included while arriving at the 'gross amount' simply, because of the reason that no price is charged by the assess....
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....rent issues; demanded under two different heads; governed by two different clauses in the contract agreement dated 14.05.2012; usage of such invoice relating to reimbursable expenditure towards free supplies is not legally permissible. We also observe that the Original Authority has travelled beyond the ambit of show cause notice in as much as there is no such allegation (collection of tax) in respect of free supplies in the notice. Accordingly, we hold that confirmation of demand of Rs. 5.91 crores on the strength of this single invoice, which is not relatable to free supplies, is legally not sustainable. 29.2. The appellant has factually proved that the amount received is only on account of reimbursements and not as part of any consideration. Considering the factual matrix with the ratio laid down the cited decisions, we hold we hold that the demand of service tax amounting to Rs.5.91 crores confirmed in the impugned order on this count is not sustainable and hence we set aside the same Service tax demand of Rs. 33.84 crores: 30. Regarding the demand of service tax of Rs. 33.84 crores, we observe that this is a combined demand covering service tax on various categories. ....
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....vice. We perused the corresponding Payment Advice No.51407542 dated 24.10.2014 pertaining to this invoice (S. No. 156 of Vol. III), which confirms that only service consideration i.e. Rs. 1,60,67,790/- was paid to the appellant and not the service component. Thus, we observe that the appellant has negated the allegation against them that they have collected service tax under the category of GTA service. Further, we observe that the charge in the show cause notice is that the appellant has billed the service tax amount in the 12 RA bills / invoices raised by them. However, there is no evidence adduced by the Revenue to substantiate the allegation that the appellant has actually 'collected' service tax. On the contrary, the appellant has submitted evidence to the effect that the service tax amount mentioned in the said bills / invoices are not collected, by producing the ledger accounts and also the Payment Advices, w.r.t. these 12 RA bills / invoices. 30.1.3. We observe that the demand of service tax of Rs. 9.03 crores cannot be confirmed on the basis of a single invoice without verification of all the invoices that too when this single invoice relied upon, belies the all....
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....o be prospective in nature. On this aspect of the matter, we may usefully refer to the Constitution Bench judgment in the case of Commissioner of Income Tax (Central)- I, New Delhi v. Vatika Township Private Limited [(2015) 1 SCC 1] wherein it was observed as under: "27. A legislation, be it a statutory Act or a statutory rule or a statutory notification, may physically consists of words printed on papers. However, conceptually it is a great deal more than an ordinary prose. There is a special peculiarity in the mode of verbal communication by a legislation. A legislation is not just a series of statements, such as one finds in a work of fiction/non-fiction or even in a judgment of a court of law. There is a technique required to draft a legislation as well as to understand a legislation. Former technique is known as legislative drafting and latter one is to be found in the various principles of "interpretation of statutes". Vis- a-vis ordinary prose, a legislation differs in its provenance, layout and features as also in the implication as to its meaning that arise by presumptions as to the intent of the maker thereof. 28. Of the various rules guiding how a legis....
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....rvice tax has been included in the invoice raised. Scrutiny of the corresponding payment advice no. 51411435 dated 04.02.2015 indicates that the appellant collected advances amounting to Rs. 18,88,65,202/- (and the same were adjusted) and the final bill on such reimbursable expenditure was raised by the appellant vide Service Tax Invoice No. HSD/REIMB/01 dated 17.12.2014. This invoice indicates the following position. Deisel reimbursement bill Rs. 20,76,92,552/- Deisel for transportation under GTA Rs. 16,13,94,958/- Deisel for Mining work assessable amount for ST Rs. 4,62,97,594/- Service tax 12% on bill amount Rs. 55,55,711/- Education cess 2% on ST Rs. 1,11,114/- SHE Cess 1% on ST Rs. 55,557/- Total Rs. 21,34,14,935/- Service Tax amount Rs. 57,22,383/- 30.2.3. It can be seen from the above documents that the total reimbursement bill on HSD upto 17.12.2014 was Rs. 20,76,92,552/- out of which advance received upto that date amounting to Rs. 18,88,65,202/- was adjusted and the remaining amount was paid to the appellant. We observe that as per the Payment Advice No.51411435 connected to this invoice, service tax amounting to Rs. 57,2....
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.... the payment of tax thereon along with details of challans under which tax was paid are furnished by the appellant on page 61 of Vol. I of the Appeal. Thus, we observe that initially when the advances were received, they have paid service tax on the advances. Subsequently, service tax is demanded for the second time when they raised the final RA bill / invoice on the gross value, - which is inclusive of the said advance component. The appellant furnished details of 28 final RA bills / invoices (pages 61 to 63 of Vol. I) by which the said advances were adjusted and the remaining amount was paid to the appellant as is clear from the corresponding payment advices issued by the service recipient. While this is the factual position, the Revenue demanded service tax on the entire gross value in respect of the above 28 instances as seen from the said table as well as the respective entries in the Annexures - A3 to A5 of the Show Cause Notice. From the documents (payment advices) submitted by the appellant, we find that when they raise the final bill, the advance component is adjusted and the remaining amount only was paid to them. We observe that the ld. adjudicating authority has confirm....
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....nue. 30.3.4. We find that the co-ordinate Bench of Hyderabad Tribunal, in the case of Vishwanath Projects Ltd Vs CST Hyderabad, vide Final Order No. A/31050/2019 dated 11.11.2019, on the issue of service tax liability on mobilization advance, has held as under : 21. xxxxxxxxxx The amount so received is a mobilization advance which has been adjusted against total bill, on which they have discharged full amount of service tax. We find that the question of taxability on mobilization advances has been well settled and this Bench in the case of GJF Construction Company Limited vs. CCE, Hyderabad (supra) and CESTAT Mumbai in the case of Thermax Instrumental Limited vs. CCE (supra) held that mobilization advance received by the assessee is not chargeable to service tax, if it is in the nature of an advance. On this ground, the demand under this head also needs to fail 30.3.5. In view of the above factual position and the cited case law, we hold that the demand confirmed in the impugned order on this count (mobilization advance) is not sustainable. 30.3.6. In respect of mining advances, the appellant submitted the details of demands made on such advances on page 64 of Vol....
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.... 30.3.8. In the similar manner, in respect of advances on ideal charges, the Revenue made out a double demand of Rs. 2,34,84,000/-. The same are available on page nos. 68 - 69 of Vol. I. 30.3.9. In the similar manner, there are double demands in respect of tyre repair charges, administrative charges etc., details of which are provided on pages 70 - 74 of Vol. I. 30.3.10. As seen from the detailed submissions made by the appellant, duly supported by documentary evidences, it is evident that the Revenue made out double demands on advances - once on advances per se and for a second time on the total gross values of the final bills / invoices, which values include the advance amounts and the appellant has been paid the remaining amount after adjusting the said advances from the final bills / invoices. This fact of double demand is corroborative from the said 3 Annexures - A3 to A5 themselves since there are separate columns therein for bill amounts as well as mobilization / work advances and tax liability is created against both the entries which liabilities are confirmed by the Ld. Adjudicating Authority. We, therefore, hold that the double demand of Rs. 10.68 crores confirmed ....
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.... private property belonging to the service recipient and hence the benefits of Notification No. 25/2012 are not applicable to the appellant. In this regard, we observe that the notification speaks of only "usage of the roads by general public" and it does not refer to ownership of the roads. We have perused the depositions obtained by the investigating agency during the course of investigation from the personnel of the appellant as well as the service recipient and the payment advices of the service recipient. We find that Para 54 of the notice dated 18.11.2017 clearly admits to usage of the road by local villagers at different stretches. Shri Sameer Kumar Rout, Assistant General Manager (Taxation), UAIL in his statement dated 15.03.2017, in response to question no. 4, clearly admitted that the said road is used by the local villagers for years together even before setting up of the plant and before acquiring the ownership of the mines road by M/s UAIL. Thus, we find that the evidence available on record clearly indicates the usage of the said road by the inhabitants of 16 villages on either side of the road. 30.5.3. The issue that construction of road used by general public is ....
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....015 - page nos. 534& 545 of Vol. IV),fact remains, service tax is not paid to the appellant by the service recipient in these two cases as is evident from the corresponding payment advice no. 41407074 dated 27.11.2013 and payment advice no. 51413660 dated 29.03.2015 (page nos. 535 & 548 of Vol. IV), the service recipient did not pay service tax even in these two instances. In all, there are 12 transactions in respect of road work, details of which are provided on page nos. 84 - 85 of Vol. I. The related bills / invoices and payment advices are provided on page nos. 520 - 562 of Vol. IV. From a perusal of these documents, we observe that, apart from the two instances cited above, none of the bills / invoices indicate billing of service tax. The payment advices in all the 12 cases indicate that service tax was not paid by the service recipient to the appellant. We thus observe that the Revenue has not brought in any evidence to substantiate the allegation that the appellant has actually collected the service tax. While this is the factual position, the Ld. Adjudicating Authority cited the above two bills / invoices (paragraphs 5.33.2 & 5.33.4 of O-I-O - page nos. 243 & 245 of Vol. I)....
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....as not given any findings to the above said submissions made by the appellant. The deposition of the personnel of the appellant that the so-called Commission has been subjected to tax in the hands of the appellant already and any further demand would amount to double taxation has not been adverted to. 30.6.4. Since the demand has been made and confirmed as 'Commission' received by the appellant, it would be relevant to go through the relevant statutory provisions under Business Auxiliary Services under Section 65(19), which are extracted below : Section 65 (19) "business auxiliary service' means any service in relation to,- (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or (iii) any customer care service provided on behalf of the client; or (iv) procurement of goods or services, which are inputs for the client; or (v) production or processing of goods for, or on behalf of, the client; or (vi) provision of service on behalf of the client; or (vii) a service incidental or auxiliary to any acti....
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....nd. The profit margin on such back-to-back transfer of the contract is in the nature of trading the contract to make a profit. This activity is not mentioned as a taxable service under Section 65(19) of the Finance Act, 1994, under the definition of the Business Auxiliary Service. Hence, the confirmed demand is not sustainable. 30.6.6. Therefore, we hold that this demand of Rs. 1.15 crores confirmed in the impugned order under the category of 'Business Auxiliary Service' is not sustainable. 30.7. Railway work - Demand of Rs. 49.37 lakhs: 30.7.1. This demand (S. No. 15 of Annexure - A3 to the SCN - Page No. 123 of Vol. V) was raised/confirmed on the ground that it is a private railway line. The corresponding purchase order dated 06.07.2012 and the payment advice no. 41405001 dated 23.09.2013 are on Pages. 563 - 567 of Vol. IV. These documents do not indicate payment of service tax to the appellant by the service recipient. The Revenue, with the endorsement in the remarks column of the above cited S. No. of the Annexure to the notice, reading as "work in connection with railway siding for use by UAIL / ST not billed" (wherein this demand was proposed) admitted that ST was no....
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....Notification No. 17/2005-S.T. dated 07.06.2005 and Notification No. 25/2012-S.T. dated 20.06.2012, as claimed. Accordingly, no demand of Service Tax is sustainable against the appellant." 30.7.4. We observe that the Original Authority, without appreciating the fact that the Revenue itself admitted to the non-billing of service tax, confirmed this demand by citing invoice no.1 dated 03.09.2012 which is the subject matter of S. No. 1 of Annexure - A2 to the notice (page 122 of Vol. V) for the year 2012-13 in which case, the appellant submitted that service tax has been collected and paid during the normal course vide challan no. 106 dated 27.09.2012. All the connecting documents relating to this transaction i.e., invoice, payment advice & challan are on pages 129 - 131 of Vol. III. 30.7.5. In view of the discussions and by relying on the decisions cited above, we hold that the demand of Rs. 49,37,297/- confirmed in the impugned order is not sustainable. 30.8. Erection, Commissioning and Testing - Double Demand - Rs. 92.46 lakhs (S. No. 68 of Annexure - A3 and S. No. 75 of Annexure - A4): 30.8.1 The appellant submitted that this is a double demand as the same demand relate....
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....for a lump sum compensation. For this purpose, the appellant paid the said amount to the said company and got the same reimbursed from UAIL. The documentary evidence submitted by the appellant in the form of two letters dated 27.08.2013 and 25.10.2013 and a Note dated 17.07.2013, indicate that the reimbursement received by the appellant was not related to any taxable service. Accordingly, we hold that service tax confirmed in the impugned order on this count is not sustainable. Hence, the demand of Rs. 12.36 lakhs confirmed in the impugned order on this count is set aside. 30.10. Demand of Rs. 28.38 lakhs (S. No. 3 of Annexure - A4 - page no. 127 of Vol. V) 30.10.1. The appellant submitted that this is a case of double demand which is already covered against S. No. 68 of Annexure - A3 (page no. 126 of Vol. V) as well as in the Notice dated 17.10.2016. We have perused the S. No. 3 of Annexure - A4 and S. No. 68 of Annexure - A3 of the Notice. S. No. 3 of Annexure - A4 indicates that the Revenue has relied upon the Work Order No.11/10639/02/1758 dated 08.07.2011 and Payment Advice No. 51400850 dated 29.04.2014 for the purpose of raising this demand. We observe that the same Pay....
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....ransportation of Bauxite Ore which is chargeable to service tax on reverse charge mechanism and that UAIL paid service tax on the same. The Revenue cited the reference of original invoice dated 22.05.2015, wherein the appellant has raised service tax also in the bill. However, the appellant submitted that later they issued a Revised Service Tax invoice no. 40 dated 01.06.2015, wherein the service tax earlier billed was excluded. The appellant submitted the related payment advice dated 15.06.2015, in support of their contention that they have not collected the service tax raised in the original invoice dated 22.05.2015. (Related RA Bill / Invoice is on Pages 592, 595 & 493 of Vol. IV). Submissions on the subject in Memorandum of Appeal on Pages 94 - 96 of Vol. I.). We have perused the revised invoice dated 01.06.2015, wherein the service tax billed earlier was excluded. The corresponding payment advice 15.06.2015 confirms the claim of the appellant that they have not collected the service tax on this bill. Thus, we observe that the related payment advice indicates that only service consideration was paid and no service tax component was paid. Since, the appellant was not paid the sa....
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....o, there is no finding as to why the said services are classifiable under the category of Erection, Installation & Commissioning Service'. Even though the service is indicated as 'Works Contract Service' in respect of the other 2 S. Nos. (Sl. No.7 of Annexure - A3 and Sl. No. 21 of Annexure A4), demand is computed on the entire value. We observe that the service rendered by the appellant include materials also and hence the said services are appropriately classifiable under the category of 'Work Contract Service'. Accordingly, we hold that the appellant is eligible for the abatement 60% available to 'Works Contract Service'. Thus, we hold that the appellant has rightly computed service tax on 40% of the value and correctly paid service tax as per the provisions relating to Works Contract Service on these three transactions. We observe that the appellant was paid service tax on 40% of the value in all these 3 cases as seen from the related payment advice nos. 41402914 dated 18.07.2013, 51404898 dated 14.08.2041 and 51404907 dated 14.08.2014 (pages 602 - 606 of Vol. IV). Accordingly, we hold that the demand confirmed on this count i.e., Rs. 22,87,374/- is not sustainable and hence we....
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....bility on this balance amount with proper documentation as the unit had closed its operations and offices way back in the year 2015. The appellant submits that the Ld. Adjudicating Authority has not given any finding in the impugned order with reference to the voluminous evidence and extensive submissions and the service tax liability on this amount. However, the appellant submits that the remaining demand Rs. 55,57,958/- lakhs fails on limitation front. 30.17. We observe that the present notice was issued on the heels of the earlier notice dated 17.10.2016, covering the same period; the said notice has clearly gone on record that the appellant was providing exempt / non-taxable services like bauxite are transportation, reimbursable expenditure, road works etc., and yet did not question the said clearances. We also observe that three successive audits have been conducted during the relevant period, the audit teams did not question the said transactions; in fact, the audit memo dated 06.05.2016 for year 2014-15 has asked for reversal of proportionate CENVAT Credit on the ground that the appellant have provided taxable as well as exempt / non-taxable clearances. Thus, we observe t....
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....d by the appellant, accounts of the appellant company were audited upto the period 2014-15. We, therefore, hold that the demand under this head for the years 2013-14 and 2014-15 amounting to Rs. 43,66,149/- and Rs. 12,15,906/- respectively are liable to be set aside on time bar front and accordingly we set aside the same. 31.6. With regard to the demand of Rs. 13,25,621/- relating to the normal period - 2015-16 - the appellant contested the same on various grounds. * The demand pertains to 141 documents. * Excess credit availment was pointed out only in respect of 4 invoices. The same was duly explained by the appellant. * There is no objection from the department in respect of the remaining 137 documents by the very fact, '0' is indicated against these documents in column 8 of the Annexure - C3 with caption 'excess credit claimed than invoice'. * The Department admitted that the appellant provided duty payment documents to the extent of credit availment of Rs. 25,71,907/- as against the availment of credit of Rs. 27,63,848/-. The relevant portion of the table is extracted below: Particulars Inputs Input services Total Input / I....
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....al grounds should not come in the way of allowance of substantial benefit, due to the appellant. Since the appellant has already produced documents evidencing availment of credit of Rs. 25,71,907/- as against the availment of credit of Rs. 27,63,848/-, as accepted by the Department in the said Annexure and since the same are available with the department, the appellant is required to produce documentary evidence in respect of the balance credit of Rs. 1,91,941/- only. The appellant submitted that they have the documentary evidence for availment of this balance CENVAT Credit of Rs. 1,91,941/- also. Accordingly, we remand the matter back to the adjudicating authority for the purpose of verification of documents w.r.t availment of CENVAT credit of Rs. 13,25,621. LIMITATION: 32. We observe that the appellant contested all the demands confirmed in the impugned order on merit as well as on the ground of limitation. 32.1. The appellant provided exhaustive documentary evidence to support their claim that the demand for the extended period in the present case is not legally sustainable. In this regard they had provided the correspondence between the audit officers and the appellant....
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.... * All the objections of the audit were complied with by the appellant; 32.4. In view of the above factual position, we hold that the Revenue was well aware of the issues on which demand was raised in the present proceedings much before issuance of the present notice. When the facts are in the knowledge of Revenue through audit of the accounts of the appellant as well as through the proceedings of other notice dated 17.10.2016, issued under the extended period, suppression of facts with intention to evade the tax cannot be alleged and extended period of limitation cannot be invoked. 32.5. In view of the above, we hold that the extended period of limitation cannot be invoked to demand service tax and CENVAT credit in this case. Accordingly, we hold that in the case of all the confirmed demands discussed above, the extended period provisions could not have been invoked. Hence, we hold that the following demands in respect of the extended period i.e., upto to the year 2014-15 are not legally sustainable on account of the time bar and set aside the same: S. No. Nature of demand Demand hit by limitation 1 Free supply material Rs. 5,91,69,382 2 Service tax ....
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....is count according to the appellant is Rs. 2,34,48,508/-. The appellant adds that these demands are already placed under the respective heads in the Appeal Memorandum and have been contested along with the demands relating to the earlier years. The details of the paras under which these demands were dealt in the Appeal Memorandum are also provided in the said Annexure - II. 33.2. The appellant summarized their stand with reference to Annexure - A5 to the notice in the form of a table as provided hereunder. Normal period - Financial year 2015-16 S.No Description Amount 1 Total demand as per Annexure - A5 on the 51 invoices / payment advices 11,27,88,747 2 Demand on commission 54,08,541 3 Total Demand (S. No. 1+2) 11,81,97,288 4 Tax payable as per the appellant as per Annexure - I 4,82,05,012 5 Tax payable as per the appellant as per Annexure - II 4,11,35,227 6 Total (S. No. 4+5) 8,93,40,239 7 Tax payable on commission as per the appellant 0 8 Total (S. No. 6+7) 8,93,40,239 9 Difference (S. No. 3-8) 2,88,57,049 10 Total amount demanded by the department 11,81,97,288 11 ....
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....charged service tax in the bills raised by them. In this regard, the Ld. Authorized Representative of the Revenue has relied on Section 12B of the Central Excise Act, which is made applicable to service tax and contended that once service tax is charged in the invoice, the same is payable in the next month in which bill/invoice was issued. Subsequent less realization may be adjusted by an assessee. But after issuing invoice, there is no justifiable reason for not showing that liability in the return and non-payment of tax. 34.1. In this regard, we observe that the main criterion that determines the liability of payment of service tax is its taxability. If an activity undertaken by the appellant is liable to pay service tax as per the extant provisions of service tax, then the appellant is liable to pay the service tax whether they collect it or not from the service recipient. On the other hand, if an activity undertaken by the appellant is not liable to service tax as per the extant provisions of law, then the liability of payment of service tax cannot be fastened on the appellant. However, we also observe that even if the appellant is not liable to pay service tax, but the appe....
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....d collected by them, even though there is no liability of payment on the appellant on such activities. The evidences in the form of RA bills / invoices / payment advices submitted by the appellant indicate that in many cases, even though they billed service tax in the bills, the service tax amount was not paid to them by the service recipient. On the basis of those evidences submitted by the appellant, we observed that even though the appellant billed service tax in some of the bills initially, the appellant is not liable to pay service tax, as the service recipient has finally not paid the service tax amount to them, as evidenced by the RA bills / invoices raised for final payment / payment advices issued by the service recipient. However, we make it clear that in any of the cases where the appellant has billed service tax in the bills and collected it from the service recipient and not paid the same to the exchequer during the normal period i.e., 2015-16, the appellant is liable to pay the amount of service tax collected by them to the exchequer, even if the activity is held as not liable to service tax in this order, as per the provisions of Section 73A of the Finance Act, 1994.....
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....ont too. In this backdrop, it may not be fair to impute mala fide intention on the part of Shri Ravichandra. Having regard to this position, we set aside the penalty of Rs. 1,00,000/- imposed on Shri M. V. Ravichandra, Managing Director of M/s K.V. Mohanarao & Co. Pvt. Ltd. 35.3. The Original Authority also imposed a penalty of Rs.1 Lakh on Shri T. Srinivasa Rao, GPA Holder and Authorized signatory of M/s K. V. Mohanarao & Co. Pvt. Ltd., Shri Srinivasa Rao submitted that he is a mere General Power of Attorney holder and acted on behalf of and as per the instruction of the principal and that he is not liable to penalty under Section 78A ibid in terms of the judgment of Hon'ble Supreme Court in the case of Suraj Lamp and Industries. Pvt. Ltd. Vs. State of Haryana & Anr. - (2012 1 SSC 656). He further submitted that intention of the appellant to evade tax cannot be presumed without any evidence on his involvement and intention to evade tax and that there was no mala fide on his part to evade tax. He pleaded that the fact of mere being in charge of the affairs of the company itself is not a ground for imposition of penalty on him under this section. 35.4. From the discussions in ....
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....07 lakhs, pertaining to the period 2013-14 and 2014-15 confirmed in the impugned order on account of irregular availment of Cenvat credit is set aside on the ground of limitation. The demand of Rs. 13,25,621/- pertaining to input and input services out of the demand of Rs. 69,07,000/-, for the normal period i.e., 2015-16 is remanded to the Original Authority for decision as per the directions contained in paragraph 31.8 supra. (vi) The demand confirmed in the impugned order by invoking extended period of limitation (except the CENVAT Credit demand of Rs. 1.86 crores) is set aside. For the same reason, penalties imposed on the appellant and demand of interest on the confirmed demands are set aside. Penalty on the demand of Rs. 1.86 crores is set aside in terms of Section 73(3) of the Finance Act, 1994, in view of payment of the said amount along with interest prior to issuance of notice. (vii) For the same reason, the personal penalties imposed on Shri M. V. Ravichandra, Managing Director and T. Srinivasa Rao, Power of Attorney Holder of M/s K. V. Mohana Rao & Company Pvt. Ltd., are also set aside as no mala fide intention can be imputed against them. (vii....