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TMI Blog2019 (3) TMI 1737X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to be rejected as non-maintainable. The Commission, therefore, is of the considered view that the applicant has not complied with the requirement of proviso (d) of Section 32E(1) of the Central Excise Act, 1944, as applicable to Service Tax matters - The Commission further notes that as the main application is treated as non-maintainable, the application of the co-applicant is also held to be non-maintainable. The Bench rejects the applications of the applicant as well as of the co-applicant as inadmissible and non-maintainable. - SETTLEMENT COMMISSION, CUSTOMS, CENTRAL EXCISE AND SERVICE TAX, KOLKATA - Final Order No. F-511/ST/2019-SC(KB)-Rej - Dated:- 1-3-2019 - Shri S.S. Lenka, Vice-Chairman and Piyusha Kr. Patnaik, Member Smt. Susmita Bhattacharya, Jt. Commissioner, S/Shri Shivaji Chakrabory, SIO, Ajay Keshri, I.O., for the Department. ORDER This order disposes of Settlement Application Nos. 1154/2018 1162/2018, filed by M/s. Eldyne Electro Systems Pvt. Ltd. having their office at P-21, Old Ballygunge Road, Kolkata - 700019 (hereinafter referred to as applicant) and Shri Santanu Basu (hereinafter referred to as co-applicant ) under Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided by them also on Reverse Charge basis, they are liable to pay tax for the following services received by them :- (i) Car Rentals (ii) Transportation/Freight (iii) Consulting Engineer (e) Directors Remuneration (d) Manpower Recruitment (g) Legal Consultancy During Investigation, the applicant accepted the fact of evasion of Service Tax and voluntarily deposited ₹ 44,84,825/- (Rupees forty four lakh eighty four thousand eight hundred twenty five only). After Investigation, the SCN was issued on 27-11-2017 vide No. 219/KZU/Kol/Gr.-A/16/Part-VIII/9704 whereby the applicant was called upon to snow cause to the Commissioner of CGST CX, Kolkata South Commissionerate, GST Bhavan, 180, Shanti Pally, Rajdanga Main Road, Kolkata-700107 (hereinafter referred to as the jurisdictional Commisioner ) as to why : (i) Service Tax amounting to ₹ 3,68,99,392/- (Rupees three crore sixty eight lakh ninety nine thousand three hundred ninety two) only, evaded by them during the material period should not be demanded and recovered in terms of the proviso to Section 73(1) read with Section 73A of the Finance Act, 1994. (ii) Interest a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdictional Commissioner as well as from the Additional Director General, DGGSTI, Kolkata Zonal Unit, Kolkata. 4.1 The report from the Additional Director General, DGGSTI, Kolkata Zonal Unit, was received on 12-11-2018 under DGGI F. No. 219/KZU/Kol/Gr-A/2016/6784, wherein inter alia it has been submitted that :- A. The applicant was engaged in evasion of Service Tax by way of not discharging applicable S. Tax liability against taxable services provided by them. They also did not submit ST-3 returns from 2012-13 onwards and in those returns which were filed, suppressed relevant details pertaining to the value of such taxable Services rendered or received by them. By scrutiny of the relevant documents it was found out that they have evaded tax amounting to ₹ 3,68,99,382/- during 2012-13 to 2016-17, which were calculated by deducting the amount of tax paid by them in cash and Cenvat credit against their gross tax liability for the material period. Accordingly, the subject SCN was issued on 27-11-2017. B. In their Settlement Applications, they have agreed and accepted certain aspects of the demand and denied the rest. In this connection, the following submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s raised invoices charging Service Tax at full rate, copies of which are enclosed. (c) In connection to the exemption claimed by the applicant for Turnkey contracts awarded to them by RITES Ltd. on behalf of MPPGCL NTPC, it is mentioned that both contracts are for setting up thermal power projects and not for public transportation of goods or passengers as already detailed before. However, at Serial No. 14(a) of the above Notification, exemption has only been provided for services rendered to Railways. Even prior to 1-7-2012, there was a similar exclusion for Railways u/s. 65(105)(zzza) (Works Contract) of the Act, which appears to be not applicable to the subject case and applies mutatis mutandis. This interpretation is of the view that the services rendered were not in relation to building of railway infrastructure meant for public transportation of passengers or goods, but for projects meant for use by commercial/industrial bodies. Hence applicability of Sl. No. 29(h) of the above notification does not arise. Only such services which were exempt originally, would qualify for exemption to a sub-contractor providing services to the original contractor of exempted servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E. Unless the payment of Service Tax can be ascertained, interest cannot be quantified. 4.2 Although the applicant has admitted the duty liability of ₹ 1,92,18,792/-, they have not submitted as to how the admitted amount has been accounted for by them, as they claimed certain amount paid by Challans and the rest to be accounted for from Cenvat credit. In reply to the Commission s letter dated 17-7-2018, the applicant in his letter dated 2-8-2018 has again enclosed calculation sheet showing different Challan Nos. amounting to ₹ 1,24,58,107/- towards duty, ₹ 3,43,000/- towards interest and ₹ 1,000/- towards application fee, totalling ₹ 1,28,02,107/-. It was claimed by the applicant that the balance of the admitted amount (₹ 67,60,685/-) has been adjusted against the Cenvat credit available with them under Reverse Charge Mechanism (RCM). 4.3 The applicant was asked, vide this office letters dated 29-8-2018 and 4-10-2018, to submit the evidences in support of their payment particulars of ₹ 1,24,58,107/- as mentioned in their letter dated 16-8-2018, as only payment of ₹ 93,85,257/- could be verified by DGCEI. The applicant did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax liability of ₹ 3,68,99,392/-, as demanded in the SCN, evidence of payment was only verified to the tune of ₹ 90,42,257/-. Further, out of admitted amount of ₹ 1,92,18,792/-, the applicant has claimed to treat an amount of ₹ 67,60,685/- as adjustment against the amount of credit under RCM available with them. However, they have not produced any evidence of availment of such credit in the form of any invoices and records maintained for this purpose and the returns where such availment has been indicated as per the Rule, verifiable by the competent Central Excise Authority. Therefore, such a claim could not be verified. 6.2 As per the provisions of proviso (d) of Section 32F(1) of the Central Excise Act, no settlement application shall be filed unless the applicant has paid the additional amount of service tax accepted by him along with the interest. Keeping in view of the fact that the applicant has not submitted the entire bunch of verifiable challans evidencing payment of Service Tax as claimed by him and the evidences for adjustment of certain amount of Cenvat credit under the RCM against the admitted liability, the Bench notes that the applicant has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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