9911796707
TMI Blog2015 (8) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... other house-keeping services. The Revenue observed difference in gross value of taxable service as shown in ST-3 returns, as compared to turnover as per Books of Account. 3. A show-cause notice dated 21.12.2012 was issued for the period 2011-12 and pursuant to adjudication, being the present impugned order, the following issues are involved as shown in the table below:- Sr. No Issue Value of Service (Rs.) Service Tax Demand (Rs.) in dispute 1 Claimed as Non Taxable Services 40,00,09,350 4,12,00,963 2 Cleaning Services 28,59,75,429 2,94,55,469 3 Services provided to SEZ units 2,97,89,220 30,68,290 4 Difference in Value of Services as per ST-3 returns & Balance Sheet due to Point of Taxation Rules, 2011 (POTR) 5,64,07,387 58,09,961 5 Reimbursement of expenses 3,35,95,528 34,60,339 Total 80,57,76,914 8,29,95,022 Further, additional admitted tax, pre-deposited Rs. 51,56,492/- before issue of show-cause notice was directed to be appropriated. Further, penalty under Section 78 is imposed at Rs. 8,29,95,022/- and Rs. 10,000/- under Section 77 of the Act. 4. It is urged by the appellant that the issue involved in the present appeal at Sr. No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied upon in the current period adjudication proceedings. Thus, it is evident that there is no change in the nature of services provided by the appellant. Even clients (Service receivers) are mostly the same. Further, the learned Commissioner in the order-in-original dated 12.11.2012 has accepted the certificate of Chartered Accountant filed by the appellant regarding non-taxable services and service provided to SEZ units and cleaning services provided to SEZ units and cleaning services provided to non-commercial organizations(s). The demands with respect to the exempted services or non-taxable services were dropped in the earlier show-cause notice. (emphasis supplied) However, while dealing with the present show-cause notice, the learned Commissioner has ignored the factual details/aspects and has brushed aside the submission holding that in the present show-cause notice specific amount to be paid have been categorized and accordingly Service Tax demand has been made with specific allegation. The learned Counsel assails the findings of the learned Commissioner as erroneous. 5.1 It is further urged that in the present proceedings, the submission has been brushed aside arbitrarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exemption correctly, declared the availment of exemption in their ST-3 returns filed for the period April, 2007 to March, 2009 and also submitted necessary evidences to support their claim. In view of the fact that certificates evidencing approval of SEZ developers/SEZ units have been submitted along with Chartered Accontant's Certificate certifying the value of services provided to such units or developers and the SCNs do not contain any specific details about the value, I agree with the claim of the notice that they availed the exemption from Service Tax for services provided to SEZ Developer or SEZ units correctly. The notice also stated that the service supplied was Security Agency Service and not Manpower Recruitment or Supply Agency Service as alleged in the show-cause notice." (emphasis supplied) 5.2 Thus, the impugned order in cryptic and in gross violation of principles of natural justice. Further, the impugned order has been passed without providing adequate opportunity of hearing. Although, the adjudication proceedings were kept pending, yet no opportunity of hearing was given after passing o final order by this Tribunal dated 11.4.2014, resulting into mis-carri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforementioned undated letter submitted by the appellant, but have conveniently chosen to take some data from the said letter found convenient to him. This fact is evident from the chart referred to in para 20 & 21 of the impugned order. It is further urged that the impugned order is contrary to the provisions of Section 73(3) of the Finance Act, 1994. The bare reading of the provisions reveals that if the assessee have paid the tax amount, which has not been levied or paid or has been short levied or short paid on the basis of its own ascertainment before issue of show-cause notice, under sub-section (1) of Section 73 informed about such payment in writing, no show-cause notice for the said amount shall be issued thereafter. In this present case, upon receipt of the Order-in-Original of cleaning service (to some clients) and reimbursement expenditure of expenditure, the appellant herein opted and voluntary paid an amount of Rs. 51,56,492/- pertaining to the period 2011-12 (in dispute). Once the amount has been paid in accordance with the provisions of Section 73(3), there was no requirement for issue of show-cause notice and subjecting the appellant to fresh litigation for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emanded to the court below. 7. Having considered the rival submissions and the written submission submitted by both the sides, we take note of the fact that the earlier order of this Tribunal dated 11.4.2014 for the earlier period in the appellant's own case has been accepted by the Revenue. 7.1 So far the issue of non-taxable services is concerned, it is seen that other than security services, the appellant also provided services like caretaking services, driving services, loading and unloading services, fire fighting services which are not covered in any category of taxable services. As per certificate of the C.a. produced by the appellant before the court below as well as this Tribunal, the total value of such services is Rs. 40,00,99,350/- for the disputed period. The learned C.A. has certified that the figure of turn over is correct as per the Books of account maintained. It is further seen that no specific head of service category has been proposed in the show-cause notice nor confirmed in the impugned order. Thus, the show-cause notice as well as the impugned order are vague. As regards classification, it is settled law that classification of taxable service must be sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating authority have considered the gross value as inclusive of Service Tax and have dropped the demand with respect to cleaning services provided to Govt. organizations, Agriculture, Horticulture etc. Thus, we hold that the demand of Rs. 2,94,55,469/- towards cleaning services is erroneous and is accordingly set aside. The admitted liability of tax, is the actual liability of Rs. 20,90,285/-, have already been discharged before issue of show-cause notice. 7.3 So far the 'service provided to SEZ' is concerned, vide Notification No. 17/2011, it is provided that the services wholly provided within the SEZ unit are exempted from whole of Service Tax. However, in order to claim exemption, the service provider must have approval from the Approval Committee of SEZ and also producing of the prescribed documents. The appellant provides security services to about 26 SEZ units. In respect of 26 SEZ units, demand of Rs. 30,68,290/- have been confirmed against the appellant. In the course of hearing, the learned Counsel for the appellant produced the prescribed form along with the approval from the Approval Committee in respect of the SEZ units save and except one M/s Punj Lloyd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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