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TMI Blog2024 (10) TMI 1402X X X X Extracts X X X X X X X X Extracts X X X X ..... whether or not they have collected same from their clients. We cannot accept a new ground of liability of service tax at this stage, proposed by the Learned Counsel for the appellant because there was never a point of contention at the time of Order-in-Original or Order-in-Appeal. We therefore, find the Learned Lower Authority was correct and confirmed the demands along with interest and imposing penalties. Appeal dismissed. - MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) AND MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) None, for the Appellant Shri Santosh Kumar, Authorised Representative for the Respondent ORDER This appeal is directed against Order-in-Appeal No.46/ST/ALLD/2012 dated 13/03/2012 passed by Commissioner (Appeals) Customs, Central Excise Service Tax, Allahabad. By the impugned order, Commissioner (Appeals) has upheld the Order-in-Original No.(ST-141/2010) 128 of 2011 dated 20.07.2011, wherein following has been held:- ORDER 1. I hereby confirm the demand of The service tax amounting to Rs. 6,69,879/- (Service Tax Rs. 6,53,810/- + Education Cess Rs. 12,366/- + Secondary Higher Education Cess Rs. 3,703/-) as service tax under the provision of section 73(2) of the Finance Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , however, vide letter dated 09.07.2024, they withdrew their Vakalatnama and therefore notices for hearing was given to the appellant directly. 3.2 None appeared on behalf of the appellant. In terms of Rule 20 of CESTAT Procedure Rules, the appeal is taken up for decision on merits after hearing the learned Authorized Representative appearing for revenue. 3.3 Learned Authorized Representative appearing for revenue reiterates the findings recorded in the orders of the lower authorities. 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 Interestingly, appellant in the present case even before the Original Authority also did not contested anything in the show cause notice except for certain computations. Relevant paragraphs of the order of Original Authority are reproduced bellow:- The party submitted defence reply on 13.05.2011 and also appeared for personal hearing on 13.07.2011. The contention of the party was also verified by the Assistant Commissioner, Central Excise, Division, Mirzapur on 16.06.2011. The party stated that they do not wish to contest the show cause notice on merit except on the ground of qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ross amount received. 4.4 Thus he has worked out the demand of service tax as follows:- On considering these facts, the service tax amount wrongly calculated in the SCN on the value of non-taxable services (prior to 16.06.2005) Rs. 4,06,784/- and amount of service tax collected by the service provider from M/s Hindalco Rs. 14,47,807.15/-, total amount Rs. 18,54,591.15 or Rs. 18,54,591/- on which Service Tax + Education Cess comes out to Rs. 1,89,169/- (Rs.1,85,459/- Rs.3,710/- Education Cess). Thus remaining liability on the party comes to Rs. 6,69,879/- (Rs. 8,59,048/- Rs. 1,89,169/-) The calculation chart is given as under:- S. No Particulars Amt. Service Tax (10%) Ed. Cess (2%) H. Sec. Ed. Cess Total 1. Service Tax paid by M/s Hindalco Indus. Ltd. 14,47,807.15 1,44,781.00 2,896.00 - 1,47,677.00 2. Amt. received prior/ upto 16.06.2005 4,06,784 40,678.00 814.00 - 41,492.00 Total 18,54,591.15 1,85,459.00 3,710.00 - 1,89,169.00 Thus the amount of Rs. 6,69,879/- (Rs. 6,53,810/- Service Tax + Rs. 12,366/- Education Cess +3,703/-HSEd Cess) is liable to be confirmed against the amount as demanded in the SCN. 4.4 The only dispute was in respect of demand of service tax on the amount towa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very of staff costs from the recipient e.g. salary and other contributions. Even if the arrangement does not involve the recipient paying these staff costs to the supplier (because the salary is paid directly to the individual or the contributions are paid to the respective authority) these amounts are still part of the consideration and hence form part of the gross amount. 4.6 Thus, the findings or facts rendered by both the authorities that the amount claimed as Provident Fund is part of the gross amount received as consideration, the provision of the said services cannot be disputed with. That being so, service tax has been rightly demanded and confirmed after allowing the deductions towards the amounts received for the services provided prior to 16.06.2005 and after deducting the amount of service tax included in the gross amount. 4.7 On limitation and penalty, Original Authority has observed as follows:- Now, I take the issue of invoking the proviso of Section 73 (1) for demand and recovery under the extended period. It is evident from the fact of the case and documents on record that during the relevant period party has not disclosed anything to the department inspite of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue of taxable service and never disclosed the payment received or services rendered by them. As I have observed herein above, in this case the party was conscious that the Services being provided by them are Taxable Services liable to Service Tax and they collected the Service Tax from the Service Recipient but did not deposit the same in clear dis regard to the law. Hon'ble Tribunal in the case of Suhita Ethnic Marketing Services Pvt Ltd. Vs. CCE [2005] 2 STT 222 (Mumbai-CESTAT), Mett MacDonald Ltd. Vs. CCE [1994-2006] STT 239 (New Delhi-CEGAT) and ACME Tele Power Pvt. Ltd. Vs. CCE, Chandigarh AIT-2008-13 (CESTAT) it has been held that when the amount of service tax has been determined by the department during the course of investigation then the levy of penalty is justified. In view of the facts and circumstances of the case the proposal for imposition under Section 78 of the Finance Act, 1994 is justified and therefore, I hold the penalty. I also observe that the party has not deposited the total amount of service tax received from the service recipient which clearly shows the bad intention of the party. 4.8 The above findings cannot be disputed, as the appellant was well a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coming to the demand on Video Tape Production Services, we find that they had collected the service tax from their customers. Further, Ld. Advocate has also conceded the liability and hence, it is ordered that based on the exact quantum of tax liability, equal penalty shall be imposed pertaining to the amount arrived in the remand for re-quantification, i.e., whether Rs. 16,29,611/- or Rs. 14,60,620/-. The equal penalty under Section 78 shall be applicable in respect of the this demand. No interference is also made with respect to the penalties imposed under Section 70 and 77 of the Act. In case of Air India Limited [2017 (3) G.S.T.L. 374 (Tri. - Del.)] Delhi bench observed: 12 . Next, we consider the ground of limitation raised by AIL. The contention of AIL is that no allegation of suppression can be fastened against them since the activities of AIL were within the knowledge of the department during the relevant period. Specifically the appellant had cited a letter dated 7-3-2006 written to the Joint Director of Service Tax to inform the various heads under which it was raising bills on AASL. Further, it has been contended that AIL had not paid service tax under the bona fide beli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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