2026 (7) TMI 91

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....penalty was also imposed on the appellant. 2. The facts of the case are that the appellant is engaged in the manufacture of BOPP film flexible plain and metalized, reprocessed polypropylene granules, etc. Accordingly, the Appellant obtained Excise Registration number AAACX0120HEM013 in the erstwhile regime. 2.1 The Appellant entered into a contract with M/s. Bruckner Machinenbau, GmbH & Co. KG., Germany ("BM") on 08.12.2007 for the following activities: (i) Manufacturing and supplying8.2m BOPP Line equipment for the Appellant (ii) Supervising the installation of the equipment and (iii) Execute CHECK UP and START UP of such equipments. (iv) Providing spare parts for such BOPP Line. The total consi....

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....equivalent penalty. 2.6 In response thereto, the Appellant filed a detailed reply dated 07.04.2010 on merits praying to drop the proposed demand. 2.7 Despite the detailed reply, the underlying OIO dated 28.01.2011 confirmed the proposed demand of service tax of Rs.26,60,004/- under 'erection, commissioning and installation service' along with interest and penalty. 2.8 Meanwhile, due to the Appellant's failure to fulfill the contract conditions, the contract was cancelled on 29.03.2011 and the advance remitted by the Appellant was refunded by the overseas supplier. 2.9 Being aggrieved with the Order-in-Original, the Appellant filed an appeal, praying to set aside the Order-in-Original. In such appeal, the Appellant duly appended ....

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....ed into between the Appellant and BM was cancelled due to non-fulfillment of the conditions. Accordingly, the advance paid earlier was duly refunded as is evident from the letters dated 29.03.2011. Accordingly, neither any service was rendered by BM to the Appellant nor any advance consideration was retained by BM. Hence, no service tax can be said to have become payable by the Appellant. In the absence of provision of service due to cancellation of the contract and return of consideration, the demand of service tax has no legs to stand under Section 66A of the Finance Act, 1994. He submits that such fact was duly submitted before the Ld. Appellate Authority, who upheld the demand without paying heed to such submission. In this regard, he r....

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....s Ltd., 2005 (179) E.L.T. 276 (S.C.) (iii) CCE &Cus. (Appeals), Ahmedabad v. Narayan Polyplast, 2005 (179) E.L.T. 20 (S.C.) Therefore, he prays that the impugned Order be set aside on this ground alone. 4. The ld.A.R. for the Revenue, has supported the impugned order. 5. Heard both the parties and considered the submissions. 6. We find that it is a fact on record that although the appellant gives advance for receipt of the services, but the said advance was paid by the appellant in receipt of the capital goods, which is evident from the documents placed on record by the appellant. For better appreciation of facts, the same are extracted below : 7. Further, the said contract has been cancelled by the appellant and the....

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....yl 847790800 Pos. Quantity Unit Part-No. Description Prico/Unit Total Price EUR 10 1,00 PC 600010 SOPP line B.2m Payable amount 175 000,00 175.000,00 EUR 175.000,00 Payable Amount EUR 175.000.00 Kind regards, Brückner Maschinenbau Gmbh & Co. KG 1. Johann Kfeilinger 4 Werner Hother? - BRUCKNER HERMANA0 Down payment request Page 1/1 Invoice N ., 8000041 Date 11 03.2008 Ouddor No P.1528-0 Contact Bjoern On nượ Telephone (08662)03112 e-Attait Bjoern Orr just tar :06602)63344 brueckner it Our VAT .: ) Nu. DE250740 283 Your VAT-ID-No. Your Fax lo. Your Customer Code 277121 Your Ruf. No. Luft 175 Attor receipt 000,00 out our invoice, net HUB German North Seaport ; Shang Federal Republ....

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....he above project. Thank you for your cooperation. Best Regards Yours faithfully, For XPRO INDIA LIMITED H. BAKSHI President & Chief Operating Officer BRÃœCKNER 78 procne Masctwonhau Cornell & Co KG Puertoch 1161 - 83300 Smondoet - Germany A/s Xpro India Limited, Barjora-Mejia Road, P.O. Ghutgoria, Tehsil: Barjora Dist: Bankura Fin : 722 202 Brückner Maschinenbau Gmbh & Co. KG Königsberger Str, 5-7 83313 Siegsdorf Germany BMS/GF/S. Neumann/dba Tel. +49-8662-63 9338 Fax +49-8662-63 9220 stefan [email protected] www.brueckner.com India Siegsdorf, April 7, 2011 Subject : Refund of Advance Payment for your Project No 1528 PRO Ref : Our Contact No. 4318-2-07/ BOPP dtd. 8th Dec 2007....