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TMI Blog2018 (12) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... has been adduced by the appellant to controvert the facts that the taxable value declared by the appellant in ST 3 returns were not wrong and manipulated. We hold that demand and confirmation of service tax under section 73(1) of Finance Act, 1994 by the adjudicating authority is legally correct in principal. Quantum of service tax demand - Held that:- The adjudicating authority need to examine the claim made by the appellant that the value of certain exempted services namely, the construction of road and its maintenance provided by them ought to have been deducted from the total taxable value before determination of demand of service tax from them - this fact need to be checked by the adjudicating authority whether the claim which is being made by the appellant is factually correct or not and if they have been engaged in the activity of construction of roads and its maintenance, same need to be considered and taxability of the same to be checked as per the prevalent provisions of the Finance Act, 1994 at the relevant time. Whether the service tax is correctly been calculated on receipt basis before 1.7.2011 and on accrual basis after 1.7.2011? - Held that:- As per the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 07/AKJ/CST/2014 dated 31.3.2014 whereunder the Service Tax amount of ₹ 1,09,41,124/- was confirmed under section 73(1) of the Finance Act, 1994. An equal amount of penalty has also been imposed under section 78 of the Finance Act. The order-in-original also mentions appropriation of amount of ₹ 40 lakh which was voluntarily deposited by the appellant during the course of investigation. A general penalty of ₹ 10,000/- has also been imposed under section 77. The appellants are before us against the above mentioned order-in-original. Assailing the findings of the above mentioned order-in-original, learned advocate has contended that before 1.4.2011, the service tax was payable on receipt basis and not on actual basis. It has been submitted that the figures taken in the balance sheet from financial year 2007-2008 onwards, are on ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d advocate has relied upon the Hon ble Apex Courts judgment in the case of Intercontinental Consultants and Technocrats Pvt. Ltd. [ 2018-TIOL-76 -SC] 3. Learned advocate has also contended that the demand is hit by period of limitation as the assessee had been discharging their Service Tax liability and is also been filing ST 3 return regularly. 4. We have also heard 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. 5. 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 ₹ 1,09,41,124/- along with interest and penalties as leviable under Finance Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Intercontinental Consultants and Technocrats Pvt Ltd. (supra). We find that the above judgment of Hon ble Apex Court is not relevant in their case and we are of the view that as per the provisions of Finance Act, 1994, they are required to discharge their Service Tax liability on the gross amount received by them from their clients. The facts in this case, are fully covered by decision of this Tribunal in the case of Rajasthan Ex-Servicemen Ltd. vs. CCE, Jaipur I [2017 (52) STR 42 (Tri-Del)] which has also been confirmed by the Hon ble Rajasthan High Court. The relevant extract of the same are reproduced hereinbelow: 6. Regarding the liability of the appellant for Service Tax under the category of security agency, it is clear that the services rendered are squarely covered by the tax entry and we see no merits in the pleas of the appellant 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, invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direct the adjudicating authority to examine the appellants claim in this regard. 8. We do not find any force in the arguments advanced by the learned advocate that the extended period proviso is not invokable in this particular case as they have been regularly filing ST 3 returns. We find that this is an established case of intentional evasion of service tax by manipulating and forging the figures of the taxable value for levy of service tax by the appellant and therefore, we hold that the demand for extended time period is rightly invoked. 9. In view of the above, we hold as follows: (i) We feel that order-in-original is legally correct in principal in confirming service tax under section 73(1) of Finance Act, 1994 as well as in imposing penalties under section 77 and 78 of Finance Act, 1994 on the appellant. (ii) However, so far as the quantum of service tax is concerned, we feel that adjudicating authority to rework the amount of service tax confirmed by considering the submissions of appellant with regard to the provisions of certain exempted services, issue of cum duty value and also to examine the amount of taxable value by taking the receipt basis of service cha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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