9911796707
TMI Blog2019 (6) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... eptember 2007) on this value comes to Rs. 30,99,77,593/-. But the total service tax paid by the assessee is only Rs. 27,73,65,985 (through cash Rs. 26,54,50,182/- + through CENVAT Rs. 1,19,15,803/- = Rs. 27,73,65,985/-). Therefore, the assessee has short paid service tax amounting to Rs. 3,26,11,608/-. In this regard the assessee was asked vide letter C. No.DL-I/ST/R-X/ST-3/RETURN/08 dated 05.09.2008 by fax and by post. The assessee was asked to deposit the short payment amounting to Rs. 3,26,11,608/- for the period April 2007 to September 2007 with interest till the date of payment within a week‟s time on receipt of this letter. In response to the above referred letter, the assessee vide letter no. DCS-41/45/2007-08/2563 dated 29.09.2008, (received on 01.10.2008) has submitted the revised service tax return for the period April 2007 to September 2007. On scrutiny of the revised ST-3 return for the period April 2007 to September 2007, it has been found that the value of taxable service is Rs. 2,51,19,50,469/- and the service tax liability on this value works out to Rs. 30,99,77,593/- but the assessee has paid total service tax Rs. 27,44,73,947/- (through Cash Rs. 26,54,50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereunder and on which service tax liability has to be discharged. Therefore, PBCL Ltd. short paid service tax on the taxable value of Rs. 8,31,88,23,441/- at the applicable rates, amounting to Rs. 87,10,47,545/- (Rupees Eight Seven Crores Ten Lakhs, Forty Seven Thousand Five Hundred and Forty Five only). For the sake of brevity, the reconciliation of Income shown in receipts and payment account of Balance Sheets for the Financial years 2003-04 to 2007-08 (RUD-II), the entries and service tax payment as per ST-3 Returns (RUD-III), head wise for services discussed at para 4 to 4.3, is tabulated below: Year Combined Income Receipts of DD and AIR Wing of the notice as per Balance Sheets - for Financial Year 2003-04 to 2007-08 Taxable value per in ST-3 Returns Difference S. Tax (incl. Cess)-Short paid Commercial Receipts - Sec. 65 (15) Prof. / Cons. Services - Sec. 65 (31) Income from Towers - Sec. 65 (90a) Reciept from Govt. Business - Sec. 65(15) Total Income Receipts for levy of ST-Sec. 67 2003-04 5452768508 6879219 0 92195961 5551843688 3642929679 1908914009 152713121 2004-05 6819436426 24970900 0 524044929 7368452255 5600459348 176 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment has confirmed the entire Service Tax liability alongwith interest and also imposed penalty on the appellant. 3. The ld. Advocate appearing for the appellant fairly concedes that the appellant is liable to pay Service Tax for the taxable services provided by it. However, he submitted that the cum-tax benefit has not been extended by the original authority. With regard to imposition of penalties, the ld. Advocate submits that the appellant is a statutory body and malafides cannot be attributed for imposition of the penalty. Further, he also pleads for the benefit of Section 80 of the Act, for non-imposition of penalty under Section 77 & 78 of the Act. 4. On the other hand, the ld. DR appearing for the Revenue reiterates the findings recorded in the impugned order. 5. Heard both sides and perused the case records. 6. Since the appellant concedes that it had already deposited the Service Tax alongwith interest for providing the taxable services, we are not considering the merits of the case as to whether service tax is payable by the appellant or not. However, we find that the Cum-Tax benefit has not been extended to the appellant in this case, to which it is legally entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total sum of Rs. 160.28 crore (which included penalty of 25% and interest) in June 2011 itself i.e. within 30 days. The position was informed to the CST forwarding therewith a copy of Challan (copy enclosed for ready reference). Prasar Bharti however filed an Appeal before CESTAT in August 2011 praying for refund of excess payment made by PB. Under the above circumstances, issuance of SCN and calling for a separate hearing would be sub judice to the above appeal. You are therefore, requested to kindly reconsider in proceeding further with proposed hearing and take appropriate action as deem fit and proper." 7. Learned counsel for the appellant has submitted that the second show cause notice dated 18 May 2009 which resulted in the order dated 5 May 2011 was examined by the Tribunal in Service Tax Appeal no. 1228/2011 that was decided on 5 March 2018. The Tribunal found that cum-tax benefit had not been granted to the appellant to which it was legally entitled to and so the matter was remanded to the Adjudicating Authority for a limited purpose of quantification of the service tax liability. It is, therefore, his submission that since the period involved in the show cause notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is for the tax short paid on the taxable value shown by the appellant in the ST-3 returns. The second show cause notice requires the appellant to deposit the short paid service tax as the taxable value shown in the ST-3 return for the five financial years including 2007-08 was lesser than the income receipts as per the balance sheet.
14. It is, therefore, not possible to accept the contention of learned counsel for the appellant.
15. In the end, learned counsel for the appellant has contended that the Commissioner (Adjudication) was not justified in imposing penalties under sections 76 and 77 of the Act for the reason that penalty was set aside in the earlier proceedings before the Tribunal in regard to the second show cause notice.
16. Only penalties penalty under section 77 and 78 of the Act were set aside in view of the provisions of Section 80 of the Act. We therefore, set aside, only the penalty imposed under section 77 of the Act. The impugned order, to this extent, is set aside. The appeal is, accordingly, allowed only to the extent indicated above. The remaining portion of the impugned order is upheld.
(Dictated and pronounced in the open Court) X X X X Extracts X X X X X X X X Extracts X X X X
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