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TMI Blog2011 (5) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... tered Accountant’s certificate - no verification report as desired by Tribunal in its order dated 7-12-10 was produced by Revenue. Further DR was not able to explain what further verification was required after sanction of refund - appeal is dismissed as unsubstantiated and not pursued diligently - ST/726/2007 - ST/175/2011(PB) - Dated:- 2-5-2011 - Ms. Archana Wadhwa, Shri Mathew John, JJ. Shri K.K. Jaiswal, DR, for the Appellant. Shri V. Kakaria, Advocate, for the Respondent. [Order per : Mathew John, Member (T)]. The appellant is in the business of canvassing advertisements for newspapers and they get commission for such business. They were registered under the Service Tax Rules, 1994 for payment of service tax as an advertising agency. The Revenue claims having received specific information that the appellant was suppressing the value of services rendered by the appellant. So they conducted some investigations including a search at the premises of the appellant. Based on evidences gathered a SCN was issued to the appellant which was adjudicated vide order dated 6-3-07. The operative part of the order is reproduced below :- 1. I confirm the demand of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records as produced before them and found to be correct. In the light of the above certificates issued by the Chartered Accountant I accept that the appellant have already discharged their service tax liability of Rs. 6,63,048/- and the demand of service tax of that amount was wrongly confirmed. As discussed above, the taxable value of the services of advertising agencies rendered by the appellants during the period 2001-2002 to Dec. 2005 is held to be Rs. 95,41,581/-. The service tax liability of the appellants is, therefore, ordered to be re-calculated on the taxable value of Rs. 95,41,581/- and the appellants should discharge the service tax liability accordingly after making an adjustment of the amount of Rs. 6,63,048/- already paid by them. As regards the penalty imposed, I find that the appellants had taken the service tax registration and were paying service tax. An amount of service tax of Rs. 6,63,048/- had been paid by the due dates. I, therefore, accept their submission that they did not have any intention to evade the payment of service tax. However, there has been delay in the payment of amount of service tax which the appellant would now be required to pay as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Customs, Mumbai v. Eltech Enterprises reported as 1999 (112) E.L.T. 877 (Tribunal) and Collector of Central Excise, Meeurt v. Moon Beverages Pvt. Ltd. reported as 1999 (111) E.L.T. 712 (Tribunal). These cases also affirm that Chartered Accountant s certificate needs complete verification, when elements of mens rea have also been established by circumstantial evidences. In this case the gravity of need of verification is further highlighted; (v) Commissioner (Appeals) has again committed an error of judgment by adjudging that party was not having intention to evade. It is explicit from the facts and circumstances of the case that party was suppressing taxable value by resorting to colourful devices like Barter Agreement with M/s. Kinetic Engg., Pune, Commissioner (Appeals) has completely ignored this fact. 7. The above background does not bring out the case quite clearly. This lack of clarity persists through the SCN, Order-in-Original, Order-in-Appeal, Order-in-Review and Appeal Memorandum. To be specific, clarity is lacking on the following points,- (i) Is the service of selling advertising space in newspapers taxable? (ii) Does the figure shown in the Balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3166 to 4000, S. No. 1 to 300, 501 to 600 and 801 to 1043 against their clients, other than M/s. Kinetic Engg. Pune for total amount of Rs. 2,08,56,294.10 and had recovered an amount of Rs. 1,98,112.66 as service tax from them. Thus, as per the bills resumed during the period 1-4-05 to 31-12-05, the noticee had provided services having total value of Rs. 3,01,77,756,05. 10. The appeal paper has not enclosed the barter agreement. Information available is that this matter relates to purchase of old vehicles and giving new vehicles in exchange. The nature of service rendered to Kinetic Egg. Pune is not clear. This confusion is not a hindrance in appreciating facts for the four financial years 2001-02, 2002-03, 2003-04 and 2004-05. But this confusion is a ground for ignoring ground (v) given in the appeal as reproduced in para 6 above which ground is applicable for the period after April, 2005 only. 11. The appeal is not filed with a clarity as to what should be the taxable value. The whole approach is that there is some doubt about the assessable value. So the entire figure shown in the balance sheet under the head Commission/Discount/Incentives is to be taken as value of taxab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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