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TMI Blog2024 (10) TMI 1545X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that he do not wish to contest the show cause notice on merits but only on quantification by claiming certain deductions from the taxable value determined by the revenue in show cause notice, his stand before the appellate authority is contrary to his own submissions and is challenging the rate applicable at different period of time. He has not substantiated his claim towards the application of different rates for the different period of demand. Appellant authority having found that said claim has not been substantiated rejected those submissions. We do not find any merits in the challenge made by the appellant to the order of the First Appellate authority. - MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Atul Gupta, Advocate for the Appellant Shri Santosh Kumar, Authorised Representative for the Respondent ORDER This appeal is directed against Order-in-Appeal No.38/ST/ALLD/2012 dated 07/03/2012 passed by Commissioner (Appeals) Customs, Central Excise Service Tax, Allahabad. By the impugned order, Commissioner (Appeals) has upheld the Order-in-Original No.(ST-165/2010) 129 of 2011 dated 20.07.2011, wherein following has been held:- ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals), which has been dismissed as per the impugned order. 2.5 Hence this appeal. 3.1 We have heard Shri Atul Gupta, 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 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 03.06.2011. 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 quantification of demand in as much as the gross payments received include the amount of service tax, amount pertaining to a particular service not taxable prior to a particular date, benefit of threshold limit exemption, service amounting to manufacture and material handling with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in the above provisions and I therefore, hold that the taxable value of Rs.18,25,616/- for which deduction has been claimed by the party is part of the value of taxable services and is not allowed. I now take up the point at 'B above regarding an amount of Rs. 7,53,033/- which has been contended to be pertaining to the period prior to 16.06.2005 and the party claims that this amount relates to non- taxable services as provided prior to and these services became Taxable from 16.06.2005. I observe that the Division has verified this contention of the party, and there is nothing to disbelieve this claim of the party. I also find from the record (bill and work authorization sheet) that services of maintenance and management of immovable property and service of site formation and clearance/ excavation services and manpower supply services was introduced from 16-06-05 and services provided up to 16-06-2005 can't be covered under the Service Tax Net. I allow the benefit on this count to the party and I hold that this amount is not the part of taxable value. Coming to the contention that an amount of Rs. 13,26,068.64 represents the amount of service tax received by them fronm M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax collected by the service provider from M/s Hindalco Rs. 3,26,068.64/-, total amount Rs. 10,79,102 on which Service Tax + Education Cess comes out to Rs. Rs. 1,10,068/-- (Rs. 1,07,910/- + Rs. 2,158/- Education Cess). Thus remaining liability on the party comes to Rs. 16,32,644/- (Rs. 17,42,712/- - Rs. 1,10,068/-) 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. 3,26,069/- 32,607 652/- - 33,259/- 2. Amt. received prior/ upto 16.06.2005 7,53,033/- 75,303/- 1,506 - 76,809/- Total 10,79,102 1,07,910/- 2,158/- - 1,10,068 Thus the amount of Rs. 16,32,644/- (Rs. 15,88,817/- Service Tax + Rs. 31,777/- Education Cess +12,050/-HSEd Cess) is liable to be confirmed against the amount as demanded in the SCN. 4.5 The only dispute was in respect of demand of service tax on the amount towards provident fund. On perusal of the invoices, we do not find any amount to be indicating any amount as provident fund. After going through the definition of value of taxable services adjudicating authority has concluded that the said amount claimed as deduction would not be admissib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of penalty under Section 76, 77 and 78 of the Finance Act, 1994. As regards imposition of penalty under Section 76 and 78 of the said Act is concern, I observe that Section 78 has been amended and proviso has been inserted in the said Section 78 to the effect, that the provision of Section 76 shall not apply, if penalty is payable under Section 78. I also observe that the amended provisions of Section 78 shall apply to the subject notice issued earlier as per explanation. I therefore, do not impose any penalty under Section 76. As regards imposition of penalty under Section 77 of the said Act for failure to comply with the statutory provisions of the Service Tax Act and Rules made thereunder, I find that the party has failed to comply with the provisions and therefore for their act of omission and commission, I hold the penalty under Section 77 of the Finance Act, 1994. As regards imposition of penalty under Section 78, I observe that the party has consciously and deliberately suppressed 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 bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he First Appellate Authority and even in the grounds of appeal before this Bench is that they will pay the service tax if their clients reimburse the same to them. Otherwise, they have not paid the service tax. The leviable of service tax does not change that 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 and the First Appellate Authority was correct in upholding the Order-in-Original. We find no reason to interfere with the Order- in-Appeal. In conclusion, we find the appeal is liable to be dismissed and we do so. Similarly in case of Digital Magic Visual India Ltd [2019 (21) G.S.T.L. 49 (Tri. - Chennai)] Chennai Bench observed: 10. However, 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 he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply the invoice-wise details of the services rendered which are duly certified by the Chartered Accountant The failure on the department's end-to mention the fact that the-demand in the SCN include the service value for which service tax has been paid by Hindalco does not ipso facto confirms the impugned demand against the Appellants. In the O-I-O it has been admitted by the department that the amount of Rs. 3,26,069/- received by the appellants and Rs. 7,53,033/- towards the services provided prior to 16.06.2005 and included in Gross value shown in SCN should not be included Accordingly, the demand of service tax was reduced by Rs. 1,10,068/-. It is submitted that while arriving at the amount of Rs. 1,10,068/- the rate of service tax has been calculated at flat rate of 10% and education cess at 2%. It is submitted that the amount of Rs 7,53,033/- was received towards the service rendered prior to 16.06.2005. The relevant rate of Service Tax and Education cess was as under- From 10.09.2004 to 17.04.2006 10% +2% ED. Cess From 18.04.2006 to 11.05.2007 12% + 2% Ed. Cess From 12.05.2007 to 22.02.2009 12% + 2% Ed.Cess + 1% S Higher Ed Cess From 23.02.2009 onwards 10% + 2% ED.CEss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 2 1 18376 148672 Grand total 38301 326069 It is observed that the above chart does not provide any help in arriving at a conclusion in respect of the appellants' contention. It does not specify any period of time to apply the rates Under the head of rate of 'h S edu' in first row it is shown '0 which becomes '1' in the next row and again changes to 0 and then to 1' If the appellants are trying to show the rate of 'Higher Secondary Education Cess' I find that it never went down to 0' after its enactment There is nothing in the chart as also in the submissions of the appellant to make it clear as to how and for what period the appellants have calculated the above figures 6.3.2. Further, the records placed before me in the present appeal show that there are some other charts like 'Details from 15.06.2005 and Annexure-5 Details of Service Tax paid , These unsigned self prepared charts do not contain such figures as to confirm and corroborate the contention of the appellants. It is observed that no material has been provided by them to substantiate their claim. The appellants are required to adduce evidences corroborating their contentions ..... 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