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TMI Blog2017 (5) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Commissioner of Central Excise & Customs (Appeals), Allahabad by which the demand of service tax on the reimbursed amount of Provident Fund & Bonus have been confirmed along with penalty under Section 77 & 78 of Finance Act. 2. The brief facts are that the appellant was registered with the services Department and have regularly filed the returns and paid the taxes. Show Cause Notice dated 08/10/2010 was issued as it appeared to Revenue that on the basis of some details received from M/s Hindalco Industries Ltd., the appellant has not paid Service tax on the gross amount received and have declared the amount short resulting into short levy of Service tax as they have not paid Service tax on the reimbursed amount of Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is wholly interpretational and there is no suppression of the facts etc. of the information from Revenue and also the entire demand is Revenue Neutral, as the receiver of service is entitled to take Cenvat credit of the Service tax paid by the appellant. The ld. Commissioner (Appeals) was pleased to dismiss the appeal on limitation finding that the same have been filed after more than or over and above prescribed time limit. 3. Being aggrieved the appellant is before this tribunal. In the meantime the Joint Assistant Commissioner had initiated recovery proceedings addressed to M/s Hindalco Industries Ltd. under Section 87 of the Finance Act, 1994, to withhold an amount of Rs. 8,16,691/- and deposit the same with the exchequer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Private Ltd. (Supra). We, further, find that the appellant had paid the due taxes and also filed the returns from time to time and as such there is no suppression etc. on their part. As the appellant is not contesting the demand of Service tax, we hold that the appellant is entitled to cum-tax benefit for calculation of Service tax. We remand the matter back to the Adjudicating Authority who shall recalculate the tax payable on cum-tax basis. We also set aside the penalties imposed under Section 77 and 78 of the Act. We also take notice that the appellant have claimed that they have paid an excess amount due to the recovery by special mode, amounting to Rs. 8,16,691/-. Accordingly, we direct the Adjudicating Authority to reconcile the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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