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TMI Blog2009 (8) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod 2006-07 should not be recovered along with interest under the provisions of Section 73(1) and Section 75 of the Finance Act, 1994 (hereinafter referred as the Act) respectively and also with proposal to impose penalty under Sections 76, 78 of the Act; that since the service provider has not come forward voluntarily to comply with the statutory obligations, and thus, suppressed the facts of providing the taxable services, the SCN has also invoked the proviso to sub-section (1) of Section 73 of the Act; that subsequent to the above SCN, a corrigendum to the said SCN was issued on 17-6-2009; that on adjudication, the demand of Service tax of Rs. 50,582/- and education cess of Rs. 1,012/- for the year 2005-06 and the Service tax of Rs. 1,45,251 and education cess of Rs. 2,905/- for the year 2006-07 was confirmed under Section 73 of the Act along with interest under Section 75 of the Act, besides imposing penalty of Rs. 200/- per day under Section 76 and further penalty of Rs. 1,99,750/- under Section 78 of the Act. 2. Being aggrieved by the above order, the appellant has come up with the present appeal along with stay petition wherein, they have, inter alia, contended as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same and hence treating the appellant guilty of suppression of facts with mala fide intention is totally wrong and the appellant relies on the Tribunal decision in the case of Sidharth Tubes Ltd. v. CCE - 2008 (228) E.L.T. 193; (vii) that the issue involved in this case is of interpretation, since it involves classification of service and further the dispute relates to the initial period of introduction of Service tax on both temporary labour supply service/Business Support service and any omission on the part of the appellant is bound to be viewed liberally; (viii) that the Assistant Commissioner has erred in confirming the demand for Service tax and education cess of Rs. 1,48,156/- for the financial year 2006-07 as the amount of Rs. 13,36,903/- received and as per cum-tax principle, the taxable charges are Rs. 11,91,111/- and consequently, the Service tax payable is Rs. 1,45,792/- only and hence there is excess payment of Rs. 2,364/- for the financial year 2006-07; (ix) that the appellant finally submits that in view of the above submissions, the demand is not sustainable on merits as well as on the point of limitation; (x) that the impugned case is of interpretati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of services provided during the period prior to 15-6-2005 was excluded from the total demand for financial year 2005-06; that further after allowing exemption of Rs. 4 lakhs and by adopting cum-duty value, the Service tax liability for the financial year 2005-06 was reduced to Rs. 50,582/- and education cess was reduced to Rs. 1,012/- ; that for the financial year 2006-07, on account of cum-tax value, the Service tax was reduced to Rs. 1,45,251/- and education cess was reduced to Rs. 2,905/-; that accordingly, the issue was adjudicated by confirming the demand mentioned in the corrigendum cum addendum along with interest, besides imposing penalty under Section 76 and equal penalty under Section 78 of the Act holding that the assessee has taken the Service tax registration under Business Support Service on 18-7-2007 i.e. after issuance of the SCN dated 6-6-2007 and that since the appellant has had applied for registration under the category of Business Support Services , the department has granted registration so as to enable the assessee to pay the Service tax, if any, liable to be paid under the category of Business Support Service that he has further held that the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an power agency services and accordingly, the department has issued SCN dated 6-6-2007. After receipt of the SCN, the appellant had filed an application dated 16-7-2007 with the department and obtained Service tax registration on 22-7-2007 under Business Support Service . Further, it is revealed that the appellant had also filed reply on 24-8-2007 to the SCN dated 6-6-2007. Perusal of the record reveals that after issue of the SCN, the appellant had filed application for registration under Business Support Service ; that further it is seen that even while replying to the SCN, the appellant has not uttered a single word about the registration he has obtained from the department. The above facts reveal that the appellant had determined not to take the registration under man power recruitment and supply of man power agency service, which is made taxable from 16-6-2005 and instead he wanted to pay the Service tax only under the category of Business Support Service . Even there also, there is no genuine approach by the appellant in view of the fact that the Business Support Service was brought under Service tax net with effect from 1-6-2006, whereas he has filed application for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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