9911796707
TMI Blog2024 (8) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... demand of Rs. 21,82,435/- was confirmed along with penalties. 2. The brief facts of the case are that the Appellant is engaged in the business of operating airlines and providing services of "Broadcasting service, Cable operators, Business auxiliary service, Business support service." Audit was conducted by the officers of Director General of Audit (CERA), Delhi in the month of March 2015. Scrutiny of CENVAT credit register/invoices for the period 2011-12 to 2013-14 revealed that the appellant has availed the CENVAT credit on the invoices bearing address "236,OIE, Phase-III, New Delhi" for which the appellant added later in February 2014. It was alleged by the department that the Appellant had availed CENVAT credit on the strength of invoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at correct amount of service tax to be deposited by the appellant as per Rule 3 of Point of Taxation Rules, 2011, the appellant had paid taxes on advances received by it. Moreover, prior to 01 April 2011, i.e., date on which Point of Taxation Rules, 2011 came into force, Service tax was paid on receipt basis. The appellant had received certain amounts in FY 2011-12 which pertained to the period prior to 01 April 2011 and hence, Service tax had been paid thereon in FY 2011-12. 3.1 The Ld. Chartered Accountant further contended that the said fact is evident from the perusal of ST-3 returns wherein amount on which tax is paid by the Appellant, i.e., taxable value, is much more than amount billed by the Appellant during period under dispute. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain amount was received by the Appellant during FY 2011-12 which pertained to services rendered prior to 01 April 2011 (when Service tax was payable on receipt basis) and hence, since the liability to pay Service tax on said amounts fell in Financial Year 2011-12, wherein the appellant had duly discharged its liability. The reconciliation statement showing the value of advances received in the initial months for which billing was done in subsequent months, as well as the amount pertaining to period prior to 01 April 2011 received during FY 2011-12 was done and there was no additional liability on the appellant. 3.3 The Learned Chartered Accountant submitted that the show cause notice vide Para 4.1 has itself accepted the fact that said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 and SCN under normal period of limitation could have been issued within 30 months, i.e., on or before 24 October 2014, the present SCN dated 09 December 2016 and consequent demand is time barred. 3.5 Ld. Chartered Accountant further submitted that there is no suppression, fraud, wilful mis-statement on the part of the appellant in the present case. Thus, the imposition of penalty is not maintainable. Further, as the penalty under Section 78 is imposed for the same reasons as extended period of limitation is invoked, the grounds already taken above with respect to wrongful invocation of extended period of limitation must be applied mutatis mutandis for wrongful levy of penalty under Section 78 and when the demand of tax is not sustainable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es imposed on the appellant. 6. We observe that the adjudicating authority in the impugned order has observed that the value taken in the reconciliation chart submitted by the appellant is not in accordance with the values indicated in the show cause notice. It has also been observed that the appellant has not submitted any documentary evidence for verification or in support of the value shown in the reconciliation chart submitted by them. In the absence of any corroborative documentary evidence, the adjudicating authority has confirmed this demand. We note that it has been submitted by the appellant that there is no short payment of service tax if the reconciliation statement is considered showing value of advances received in the initial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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