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TMI Blog2021 (8) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the demand confirmed under Section 73 of the Act excess recoveries made by the appellant on account of service tax cannot be demanded under Section 73 of the Act. Which figures are to be taken for computation of demand of service tax, (a) Form 26-AS or (b) Balance Sheet? - HELD THAT:- Balance sheets figures records all the transactions done by the appellant by way of issuing invoices and receipts amounts thereof and the said Balance sheets have been certified by the Chartered Accountant. In that circumstance, figures of the balance sheets are more authenticate to compute the service tax recoverable from the appellant. But the adjudicating authority chose the figures whichever is higher comfortable to him/her which is not correct. As balance sheets figures are certified by the Chartered Accountant and the same are more authentic figures, therefore, the service tax demand is to be computed on the basis of balance sheets figures - impugned order qua computation on the basis of balance sheets needs examination at the end of the adjudicating authority. Whether extended period of limitation is invokable in the facts and circumstances of the case or not? - HELD THAT:- In this case, ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the ld. Commissioner (Appeals) who considered certain pleas of the appellant but not considered other pleas and remanded the matter back to the adjudicating authority for denovo adjudication. Against the said order, the appellant is before me. 3.1 The ld. Counsel, Sh. Vikrant Kackria appearing on behalf of the appellant submits that the appellant is not contesting the demand of service tax of ₹ 1,19,262/- and 25% penalty amounting to ₹ 29,815/- in their appeal. It is his contention that the ld. Commissioner (Appeals) fell in error by remanding the matter back to the adjudicating authority to decide the issue on its merit. He further submits that the adjudicating authority has not given the benefit of Notification No. 30/2012-ST dt. 20.06.2012 to the appellant because in some cases, the appellant has recovered the excess amount from the service recipients and the same amount is recoverable from the appellant under Section 73 of the Finance Act, 1994. It is his submission that if the appellant has recovered the full amount of service tax from the service recipients, in that circumstance, the said amount is recoverable from the appellant under Section 73-A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of demand of service tax, (a) Form 26-AS or (b) Balance Sheet? (iii) Whether extended period of limitation is invokable in the facts and circumstances of the case or not? (iv) Whether the penalty can be imposed on the appellant or not? 7.1 Issue No. (i) :- The adjudicating authority after considering the arguments advanced by the appellant and documents produced gave the abetment of 60% of the total turnover being works contract and also extended the benefit of Notification No. 30/2012-ST dt. 20.06.2012 in certain cases, the appellant has paid 50% of the service tax (themselves) and 50% of the service tax was recoverable from the service recipients. These facts are not in dispute. 7.2 Only dispute is with regard certain amounts where the appellant collected the full tax from the service recipients instead of 50% of the tax and paid only 50% of the tax. Whether the said demand can be recovered from the appellant under Section 73 of the act or not? 7.3 For better appropriation, the provisions of Section 73 and Section 73-A of the Finance Act, 1994 are extracted herein below: SECTION 73. Recovery of service tax not levied or paid or short-levied or short-paid or erroneousl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of service tax due from, or erroneously refunded to, such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (2A) Where any appellate authority or tribunal or court concludes that the notice issued under the proviso to sub-section (1) is not sustainable for the reason that the charge of,- (a) fraud; or (b) collusion; or (c) wilful misstatement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or therules made thereunder with intent to evade payment of service tax, has not been established against the person chargeable with the service tax, to whom the notice was issued, the Central Excise Officer shall determine the service tax payable by such person for the period of thirty months, as if the notice was issued for the offences for which limitation of thirty months applies under sub-section (1). (3) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vied or short-paid - (a) where under the rules made under this Chapter, a periodical return,showing particulars of service tax paid during the period to which the said return relates, is to be filed by an assessee, the date on which such return is so filed; (b) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (c) in any other case, the date on which the service tax is to be paid under this Chapter or the rules made thereunder; (ii) in a case where the service tax is provisionally assessed under this Chapter or the rules made there under, the date of adjustment of the service tax after the final assessment thereof; (iii) in a case where any sum, relating to service tax, has erroneously been refunded, the date of such refund. SECTION 73A. Service tax collected from any person to be deposited with Central Government. - (1) Any person who is liable to pay service tax under the provisions of this Chapter or the rules made thereunder, and has collected any amount in excess of the service tax assessed or determined and paid on any taxable service under the provisions of this Chapter or the rules made ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 73-A of the Act and the said findings of the adjudicating authority have not been challenged by either of the side before any appellate authority. In these circumstances, I hold that the confirmation of the excess amount recovered by the appellant cannot be demanded under Section 73 of the Act. Therefore, the demand confirmed under Section 73 of the Act excess recoveries made by the appellant on account of service tax cannot be demanded under Section 73 of the Act. 8. Issue No. (ii) :- While adjudicating the matter, the adjudicating authority chose the figures from Form 26-AS or Balance sheets, whichever is higher. In fact, the adjudicating authority could have demanded the service tax either on the figures of Form 26-AS or from the figures of Balance Sheets. In fact, Balance sheets figures records all the transactions done by the appellant by way of issuing invoices and receipts amounts thereof and the said Balance sheets have been certified by the Chartered Accountant. In that circumstance, figures of the balance sheets are more authenticate to compute the service tax recoverable from the appellant. But the adjudicating authority chose the figures whichever is higher ..... X X X X Extracts X X X X X X X X Extracts X X X X
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