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TMI Blog2018 (8) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice Tax Rules, 994. They have also suppressed the fact about provision of taxable service and value of taxable service so provided by them with the intention to evade payment of Service Tax - extended period of limitation as provided by proviso to Section 73(1) of Finance Act 1994 has been correctly invoked in the present case - Also since all the ingredients for imposing penalty under section 78 are present in the matter the imposition of penalty equivalent to the quantum of tax evaded cannot be faulted with. Demand of Service Tax on concessional supply of HSD to the Appellant - Held that:- The issue in this aspect is squarely covered by the decision of larger bench in case of Bhayana Builders [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)], where it was held that The value of goods and materials supplied free of cost by a service recipient to the provider of the taxable construction service, being neither monetary or non-monetary consideration paid by or flowing from the service recipient, accruing to the benefit of service provider, would be outside the taxable value or the gross amount charged, within the meaning of the later expression in Section 67 of the Finance Act, 1994 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation from the Appellant. Investigations made revealed that the appellants were supplying earth moving machineries viz., excavators, dozers, screen plant and also tipper trucks on hire basis to their clients namely, M/s Kala Mines and Minerals (KMM), M/s Maheshwari Minerals, M/s Mineral enterprises, M/s Deep Mining Equipments, S Soban Babu etc., (Clients). It was also found that Appellants were issuing periodical invoices to all their Clients except KMM in respect of the services rendered. They have collected the service Tax in respect of the services rendered to their clients but did not deposited the same and also had not filed any service tax returns. It was also found that though Appellant have received huge payments from KMM, they have not issued any invoices in respect of the services provided by them to KMM. Thus Appellants have evaded the service tax by not remitting the entire service tax collected from clients into government account and also by not charging and collecting the service tax and also by suppressing the taxable value received. During the course of investigations statement of Shri Louis Rodrigues was recorded and various documents such as Statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax for the reason that they had not been issuing any invoice to them as directed by the service recipient. Since no invoice was issued to KMM, there was no occasion to determine the Tax liability in respect of the taxable services provided by them to KMM. In respect of the supply of tangible good services provided by them to other service recipients they had paid the service tax albeit not by the due date but late, However, an amount of ₹ 26,99,779/- along with interest of ₹ 55,584/- was paid by them prior to start of investigations; Since they have not received any service tax from the service recipient namely KMM, the amounts received by them from KMM should treated as cum tax value for determination of tax liability as has been held by this tribunal in case of V P Panneerdas Co Vs Commissioner of Service tax, Chennai [2018 (5) TMI 1238 - CESTAT]. The amounts paid by them even before the start of investigation should not be taken into account for determining the penalty under section 78 of Chapter V of the Finance Act, 1994. 6.0 Learned Authorized Representative for revenue supported the order and submitted that- Benefit of Cum tax value cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and collected Service Tax from all their clients other than Kala Mines and Minerals. In respect of M/s Kala Mines and Minerals they have charged taxable value on the basis of the statement of machinery working hours after deducting the TDS and HSD supplied at concessional rate. Thus, the liability of payment of service tax is not in dispute and accordingly I hold that the Noticee is liable to pay Service Tax of ₹ 88,49,572/- on the gross payment of ₹ 8,05,22,947/- received by them during the period May 2008 to March 2013. 8.0 Objections raised by the appellant in respect of quantification, i.e. for allowing them the benefit of cum tax value as gross value cannot be sustained in view of the Apex Court decision in case of Amrit Agro Industries Ltd wherein it has been held In our view, the above judgments in the case of Maruti Udyog Ltd. and Srichakra Tyres Ltd. have no application in the facts of the present case. In the case of Asstt. Collector of Central Excise v. Bata India Ltd. reported in 1996 (84) E.L.T. 164 this Court held that under section 4(4)(d)(ii) of Central Excises and Salt Act, 1994 the normal wholesale price is the cum-duty price which the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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