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TMI Blog2023 (6) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... t on record to substantiate whether the appellant had, in fact, deposited service tax which it had been collected from BALCO. It was incumbent upon the appellant to make available all the relevant documents to the Department even prior to the issuance of the show cause notice but that was not done and even in reply to the show cause notice no evidence had been produced by the appellant which may indicate that the service tax collected by the appellant from BALCO, had been deposited with the Department. The only course open to the Department was to have initiated proceedings under section 72 of the Finance Act and it did - The appellant does not dispute the figures that have been provided by BALCO but what is sought to be contended is that these may include some other services that may have been provided. It may be so, but then it was for the appellant to have conclusively demonstrated before the Department that the service tax collected from BALCO for the services provided to it had actually been deposited by the appellant and was also shown in the ST-3 returns filed by the appellant. Whether service tax liability should have been determined @ 4% and not @ 12% under the composi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant was required to furnish various documents, including ST-3 returns from April 01, 2007 to the date of issue of show cause notice with challans of service tax payment and other related documents, but the appellant did not furnish the documents. The Department had, therefore, to collect the document from the Associate Vice-President of BALCO to furnish details and details were furnished by BALCO. Based on the information supplied by the BALCO, the show cause notice mentions : 9.1 Though, Noticee are registered with the Superintendent (Service Tax) Range Korba for providing, inter alia, Maintenance or Repair Service, Erection, Commissioning and Installation service, Commercial or Industrial Construction Service, Man Power Recruitment Agency and Works Contract Service and though they are not paying Service Tax on aforesaid services rendered by them to BALCO, Korba. The Noticee has provided various services to M/s BALCO, Korba from April 2007 to March' 2012 and to this count the Noticee has issued Invoices/Bills , containing all vital information viz. Running serial (bill) number and date, Service Tax registration number, amount of the service rendered, amount of Service T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d any documentary evidence to show that they have not taken CENVAT credit of duties or cess paid on any inputs, used in or in relation to the said works contract, under the provisions of the CENVAT Credit Rules, 2004. 20.3.3 In view of the above, the Noticee s contention that tax may be leviable at the rate of 4.12% (under composition scheme) on the project work, is not tenable. 20.4 The Noticee could not explain any reasons for the difference between the gross taxable value shown in the ST-3 Returns during the impugned period i.e. from 2007-08 to 2011-12 and the gross taxable value taken for the purpose of raising of demand. Therefore, I hold the demand of Rs. 1,41,31,604/- has been raised correctly. 20.5 Further, the Noticee has stated that just to get rid of the show cause notice they are ready to deposit the amount which will over and above the value which is already shown in the service tax return and the value on which BALCO has taken credit (after correction of the value of work of project area as the rate of tax was 4% under WCT). 20.6 In this context, I have already held above that the Noticee are not entitled to benefit of reduced rate @ 4% under composit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Section shall not exceed the amount of Service Tax confirmed above. iv. I impose a penalty of Rs. 5,000/- (Rupees Five Thousand only) or two hundred rupees for every day for failure to furnish the documents and details called for during which such failure continues, whichever is higher, starting with the first day after the due date till the date of actual compliance, on the Noticee under Section 77(1)c)(i) and (ii) of the Finance Act, 1994. v. I impose a penalty of Rs. 5,000/-(Rupees Five Thousand only) on the Noticee under Section 77(2) of the Finance Act, 1994. vi. I hereby impose a penalty of Rs. 1,41,31,604/- (Rupees One Crore Forty One Lakh Thirty One Thousand Six Hundred and Four only) under Section 78 of the Finance Act, 1994. 5. Shri Jitin Singhal, learned counsel appearing for the Appellant submitted that enough evidence had been placed by the appellant before the Commissioner to enable him to arrive at a conclusion that the appellant had faithfully discharged the service tax liability for the relevant years and, therefore, the Commissioner committed an illegality in confirming the service tax demand. Learned counsel also submitted that it is also not clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 9. The appellant not only failed to produce any evidence in reply to the show cause notice, but in this appeal also nothing has been brought on record to substantiate whether the appellant had, in fact, deposited service tax which it had been collected from BALCO. It was incumbent upon the appellant to make available all the relevant documents to the Department even prior to the issuance of the show cause notice but that was not done and even in reply to the show cause notice no evidence had been produced by the appellant which may indicate that the service tax collected by the appellant from BALCO, had been deposited with the Department. The only course open to the Department was to have initiated proceedings under section 72 of the Finance Act and it did. The appellant does not dispute the figures that have been provided by BALCO but what is sought to be contended is that these may include some other services that may have been provided. It may be so, but then it was for the appellant to have conclusively demonstrated before the Department that the service tax collected from BALCO for the services provided to it had actually been deposited by the appellant and was also show ..... X X X X Extracts X X X X X X X X Extracts X X X X
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