9911796707
TMI Blog2019 (4) TMI 1697X X X X Extracts X X X X X X X X Extracts X X X X ..... e, has taken the stand that the alleged difference was because of the reason that it was maintaining a consolidated/common balance sheet for all its three units, they had undertaken software development, appellant s unit had recorded the payment of labour charges, that it was showing only income even though the same was not received during the year as it was following accrual system, etc. but it is even surprising to note that the appellant has tested the Commissioner also, by not bothering to produce any documents - we are compelled to accept the findings of Ld. Commissioner who has given a thread-bear analysis based on the best of his judgment due to the non-co-operation of the appellant - impugned order upheld. CENVAT Credit - duty paying documents - appellant did not produce any documents based on which they had taken cenvat credit for the period October 2004 to March 2008 - Rule 9 of Cenvat Credit Rules, 2004 - We are remitting this issue to the file of adjudicating authority to pass de-novo order after affording reasonable opportunities to the appellant. Extended period of limitation - HELD THAT:- There is no ground to interfere with the findings of the lower authority, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... They were interalia engaged in trading activity, a customer placing order with the appellant would in turn passed on to its vendors namely Tyco Electronics; Goods would be supplied by Tyco but the discount was claimed by the appellant by raising debit notes on the supplier; but there was no arrangement to work as any agency commission with Tyco Electronics; By inadvertent mistake the same was shown as agency commission in its books/financials; That what they received was only discount and nothing else; That they sell products to customer which is offered to sales tax; That there is no agreement between them and the vendor for collecting agency commission; etc. II DIFFERENCE IN ST-3 RETURN AND P L ACCOUNT. Annual financials were prepared consolidating the accounts in respect of all the three units of HCL Peripherals; The income reflected total income of all the three units with labour charges at all the divisions categorized under service income in its books and hence the service income cannot be attributed to the appellant alone; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p the issue of difference in ST-3 return and P L A/c first. Our observation, at the outset, is that the appellant while taking us through the explanations filed before the Adj authority, did not bother to file the enclosures which, according to it, are the supporting documents. We fail to understand this. This assumes importance when this court observed about the supporting documents while passing order on stay petition. The appellant was happy with the order but never bothered to support its case with the help of any documents. In the absence of the vital documents, we find it difficult to even appreciate the strong contentions of the appellant which lacks directions/purpose. We therefore proceed to dispose of the appeals based on the available material and case laws. 4.1 Ld. Advocate also submitted that the audit team as also the revenue had not properly appreciated the transactions carried on by the appellant inasmuch as, the revenue had failed to take note of the fact that the appellant was engaged in the software development up to 2006-07, thereafter, only job charges were received for conversion activity the service tax for which was discharged by the principal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tomer/end user and thus, the appellant only rendered assistance in the sale of goods. The sale was in the nature of in-transit sale with no trade margin while causing sale to the ultimate customer. Further, the appellant s books reflect the same as Agency commission only and the same is offered to income tax as such. We find it difficult to accept as to how the character of Agency commission changes when it comes to service tax, on its own, without there being any documentary evidence, much less basic documents, furnished. If not agency commission, then the discount which is normally given to the buyer/end user, but the same is enjoyed by an intermediary/appellant. Books reflect it as agency commission but the appellant claims it, contrary to that, as discount. The same has been offered and has accordingly suffered income tax. In the absence of explicit supporting documents, even we find it difficult to dethrone the findings of Ld. Commissioner. 5.2 Case laws relied on by the appellant are not applicable to the facts on hand since, firstly, there were some arrangements/agreements in those cases which, as contended by the appellant, are not here in this case. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after affording reasonable opportunities to the appellant. Security charges is also disallowed, not as canvassed by the appellant for the reason of not used in rendering output services, but as could be seen from the table at paragraph 16 of the impugned order, for non-production of documents. The same, however, is a part of inclusive definition of input service and hence becomes eligible. Hence, this disallowance is set aside. 8. The next credit relates to Banking charges and Insurance charges, claimed to be incurred for the appellant s manufacturing units. We are not convinced by the reasons given in the impugned order for disallowing credit on this service since, it is the case of the appellant that the banking charges related to the commission on import payment processing and for the foreign exchange received for its export, which is not disputed. Nor has the revenue disagreed with the claim of the appellant on insurance taken on stocks and fixed assets in their factory premises. Hence, we are of the opinion that the denial of this credit is also not justified and hence, the same is set aside. 9. On the limitation/invoking larger period, we do not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
