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TMI Blog2018 (12) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... s fact can only be checked at the level of original adjudicating authority and therefore, we are of the view that for the purpose of determining the financial year wise receipt of Service tax value prior to 1.7.2011 and even upto 30.06.2011, the adjudicating authority need to examine the balance sheet and other statement of accounts to re-determine the financial year wise receipts as claimed by the learned advocate and to re-determine, the demand of service tax for particular financial year - matter on remand. Cum-duty-benefit - Held that:- This fact also needs to be rejected at the level of original adjudicating authority. As found from the show cause notice that assessee have been collecting service tax on the value which is given by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... working on an intelligence that the appellants are not discharging the Service Tax liability correctly and they have been indulging in suppression of taxable value on various services provided by them, has searched the premises of the appellant on 28/29.3.2012. From the investigation, it has transpired that since 2009-10 to 2011-12, the value of taxable service declared by them under ST 3 returns was much less than what was declared in the balance sheet and books of accounts of the appellant firm for various financial years. After detailed investigation, a Show cause notice dated 16.10.2012 came to be issued to the appellant which was adjudicated by learned Commissioner (Service Tax) vide his order-in-original dated 08/AKJ/CST/2014 dated 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of their liability towards service tax was to be computed on a value arrived at on receipt basis. It has been contended that if demand for the period 2009-10,2010-11 and 2011-12 (upto 30.06.2011) is calculated on receipt basis, the demand to the extent to 28,50,438/- is liable to be dropped. The Ld. advocate has further claimed that they had paid an excess amount of ₹ 3,00,221/- towards their service tax liability in ST-3 returns, which needs to be appropriated and adjusted against the demand confirmed. The learned advocate has also submitted that the adjudicating authority has failed to give them benefit of cum duty benefit while calculating the service tax demand on them. Learned advocate has relied upon the following case laws i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned DR who has vehemently opposed the arguments advance by the learned advocate and has contended that it is established case of evasion of Service Tax as the appellant have been manipulating the balance sheet by mis-declaring the taxable value in the ST 3 return and balance sheet. It has also been contended that Shri T C Rao, CMD of the appellant in his statement dated 17.9.2012 has categorically admitted that they have fabricated and forged the value of taxable service declared under ST 3 returns submitted by them with an intent to evade payment of service tax. 7. We have heard both the sides and have perused the record of appeal. We find that the present appeal has arisen against the confirmation of service tax of ₹ 65,96,4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this regard. The lower authority examined the issue in detail and we find no ground in the present appeal to interfere with the findings. Similarly, the appellants are covered for tax liability for the whole period of demand is clear from their legal status and financial accounts to the effect that they are, infact, involved in profitable commercial activity. It is clear from the bylaws of the society which clearly stipulates about net profit. We find no justification to hold the appellant as anything other than commercial entity. Similarly, the value for tax purpose has to be the gross amount received by the appellant from their clients is a well settled legal position in terms of Section 67 of the Finance Act, 1994. The Valuation in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, we are of the view that for the purpose of determining the financial year wise receipt of Service tax value prior to 1.7.2011 and even upto 30.06.2011, the adjudicating authority need to examine the balance sheet and other statement of accounts to re-determine the financial year wise receipts as claimed by the learned advocate and to re-determine, the demand of service tax for particular financial year. 10. With regard to claim of appellant that cum-duty-benefit should have been provided to them, we find that this fact also needs to be rejected at the level of original adjudicating authority. As we find from the show cause notice that assessee have been collecting service tax on the value which is given by them on the invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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