9911796707
TMI Blog2024 (10) TMI 1462X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in respect of limitation, as the appellant was well aware that he was providing taxable services and short paid the service tax, even after issuing invoices indicating the services tax payable and collecting the same from the service recipient. Before the original authority appellant have specifically admitted and has stated that they do not intend to contest the demand made on any ground other than the quantification. In view of the specific averments made by the appellant to this effect in their submissions to the adjudicating authority and during the course of hearing before him, we are not inclined to admit any such plea at this stage. These pleas have been subsequently raised by the counsel for the appellant at the time of hearing before us. Thus, we uphold the penalties imposed upon the appellant under Section 77 78. However the quantum of penalty under Section 78 shall have to be determined after re-computation of the demand in the remand proceedings. We remand the matter to original authority for the limited purpose. - HON BLE MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) And HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Atul Gupta, Advocate Ms Ayushi Srivastava, Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Penalty should not be imposed upon them under the erstwhile Section 75A read with Section 77 of the Act for violation of Section 69 of the Act/ rule 4 of the Rules. 3. Penalty should not be imposed upon them under Section 77 of the Act for violation of Section 70 read with rule 7 of the Rules, in case of each default. 4. Penalty should not be imposed upon them under section 76 of the Act for violation Section 68 of the Act read with Rule 6 of the Rules. 5. Penalty should not be imposed upon them under Section 78 of the Act. 2.4 This show cause notice was adjudicated as per the Order- in-Original referred in para 1 above. Aggrieved appellant filed appeal to Commissioner (Appeals), which has been dismissed as per the impugned order. 2.5 Hence this appeal. 3.1 We have heard Shri Atul Gupta Ms Ayushi Srivastava, Advocate for the appellant and Shri Santosh Kumar, Authorized Representative for the revenue. 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 did not contested anything in the show cause notice except for certain computati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se be dropped. 4.3 After considering the submissions made, Original Authority has allowed the claim made by the appellant towards the amount received for providing services prior to 16.06.2005, from the gross amount as the services provided become taxable services only with effect from this date; and 4.4 Adjudicating authority has not allowed the deduction claimed by the appellant towards Provident Fund from the taxable value of services provided. After going through the definition of value of taxable services adjudicating authority has observed as follows:- No deduction under the Head Provident Fund is permissible in the above provisions and I therefore, hold that the taxable value of Rs.17,16,256/- for which deduction has been claimed by the party is part of the value of taxable services and is not allowed. 4.5 He also disallowed the deduction claimed by the appellant towards the amount stated by appellant to be the service tax paid by Hindalco and proceeded to determine the amount short paid observing as follows : Coming to the point enumerated at 'C above relating to the contention that an amount of Rs. 39,12,896.07 represents the amount of service ax received by them from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29,050.00 was paid as Service ax to the Government retaining an amount of Rs.8,83,846.07 illegally and unjustly which in any case was liable to be deposited to the Exchequer irrespective of the Service Tax liability as per provisions of Section 73 A of the Finance Act,1994. Before discussions on admissibility of deductions, I note that this action of the party of retention of amount collected as Service Tax is violation of not only section 66 and 70 of the Finance Act, 1994, but also the provisions of Section 73A of the Finance Act, 1994 as the party had consciously assessed and collected a service tax of Rs. 39,12,896/- but deposited only Rs. 30,29,050/- From the record, as also verified by the division it is clear that party has deposited Rs.30,29,050/- as service tax and at the time of P.H. he also agreed t deposit the remaining amount. 4.6 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the value 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. 4.7 In the impugned order, First Appellate Authority has obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant's prayer insofar as confirmation of demand of service tax on PF amount is concerned. There is nothjng on record to indicate and prove that amount claimed to represent provident fund actually relates to PF. The appellants have not furnished copy of show cause notice dated 11.10.2010 to demonstrate if this show cause notice demanded service tax on PF amount. In any case, in terms of following Circular of C.B.E.C. [F. No. B1/6/2005-TRU, dated 27-7-2005], PF is not excludible. The relevant portion of the said Circular is as under; 22. Manpower Recruitment Service 22.1 Prior to 16-6-2005, service tax was leviable on. services provided by manpower recruitment agencies in relation to recruitment of manpower. Amendments have been made to levy service tax on temporary supply of manpower by manpower recruitment or supply agencies. 22.2 A large number of business or industrial organizations engage the services of commercial concerns for temporary supply of manpower which is engaged for a specified period or for completion of particular projects or tasks. Services rendered by commercial concerns for supply of such manpower to clients would be covered within the purview of servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Rs. 30,29,050/- to the Govt. Exchequer. It is surprisingly observed from the verification report that the party has although received and recovered Rs. 39,12,896.07 as service tax from Ms Hindalco, the amount of which obviously M/s Hindalco have availed credit as input service , but paid only Rs. 30,29,050/- to the exchequer. I find that the appellants have neither contested nor controverted the aforesaid finding. It is also evident from the records that the appellants have not furnished any detail/evidence documentary or otherwise controverting aforesaid findings and in confirmation of their contention, either with the present appeal or during personal hearing afforded to them. The deduction of service tax payable from the gross amount shall be allowed only if the gross amount charged is inclusive of service tax payable. Not a single document has been furnished by the appellants to prove that the gross amount charged by them was inclusive of service tax payable. The claim of such an exclusion of service tax component was easily possible with reference to work orders, invoices etc. which could easily be produced along with the appeal. I find that even the copy of impugned show ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce and Repair services being not taxable prior to 16.06.2005. 10. It is observed that the adjudicating authority has granted substantial relief to the appellants and therefore, the Order-in-Original cannot be faulted. I therefore, see no reason to interfere with this order and refuse to allow the appeal. Appeal is rejected. 4.8 Thus, the findings or facts rendered by both the authority no nonpayment/ short payment of service tax cannot be faulted with. Even as per the calculation chart submitted by the appellant they have admitted that short payment of service tax to the tune of Rs 5,44,492/-. The difference in two is on account deduction claimed by the appellant, - treating certain amounts received as amount towards provident fund and the amount paid by M/s Hindalco as service tax. However adjudicating authority has specifically arrived at finding on the issue of provident fund by referring to the provisions of the statute. Appellate authority has referred to Board Circular, for disallowing this finding. This finding is not in dispute. in respect of the amount received as service tax from M/s Hindalco there seems to be apparent contradiction in the orders of lower authority. As p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised before us for the first time, the appellants are not entitled to raise the same in this Court.. . In case of J.K. Udaipur Udyog Ltd [2004 (171) E.L.T. 289 (S.C.)], Hon ble Supreme Court observed: 11. .. This plea was not taken by the assessee in reply to the show cause notice, nor was it raised before any of the Excise authorities. A new plea cannot be allowed to be raised for the first time in this Court. In case of Rawji Industrial Corporation [1989 (42) E.L.T. 199 (Bom.)], Hon ble Supreme Court observed: 12. . In fact, it is not open to Mr. Chagla to raise this contention at all as no such contention has been raised before any of the Excise Authorities right up to and inclusive of the stage of Review. If such a contention had been raised, the matter could have been looked into from that angle and necessary evidence could also have been gathered. .. 4.11 They have suppressed the information with intend to evade payment of taxes. Accordingly, the demand by invoking the extended period of limitation and penalty imposed cannot be disputed with. In case of Afsar Tour and Travels [2019 (28) G.S.T.L. 153 (Tri. - Hyd.)] Hyderabad bench has observed as follows: 9. We have carefully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 belief that it is not payable since AIL had not received payment from AASL. In the annual report 2003-04, it is mentioned Non-charging of service tax on certain services . This implies that even where service tax has been collected the same was not deposited pending registration. It has also been recorded by the statutory auditors that service tax was payable on the services rendered by AIL to AASL. However, on the pretext that consideration has not been received (despite realization of the same from sale of tickets conducted on behalf of AASL), AIL has not discharged the service tax liability. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
