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TMI Blog2024 (11) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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. The above findings cannot be disputed, 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. As evident appellant has during the entire period not filed any ST-3 return. Appellant do not dispute the factum of not filing the ST-3 return during the entire period of dispute. 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. Assessee appeal dismissed. - HON BLE MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) And HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Atul Gupta, Advocate Ms Aayushi Srivastava, Advocate for the Appellant Shri Santosh Kumar, Authorised Representative for the Respondent ORDER SANJIV SRIVASTAVA : This appeal is directed against Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead 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 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, Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.3,47,481/- for which deduction has been claimed by the party is part of the value of taxable services and is not allowed. As per verification report a separate demand for amount of PF/ Bonus has also been issued and served to the party for gross value of Rs 3,47,481/-. The amount of PF has not been included in the instant show cause notice. 4.5 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. 76,33,457.11/- on which Service Tax + Education Cess comes out to Rs. 7,78,613/- (Rs.7,63,346/- Rs.15,267/- Education Cess). Thus remaining liability on the party comes to Rs. 4,80,077/- (Rs. 12,58,690/- Rs. 7,78,6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants is without any supporting document whatsoever. I find that the appellants have not adduced/furnished any document/evidence in support of their contention whereby the year wise services provided specifically in the category of Supply of Tangible Goods and amount received against this service, could be ascertained. There is nothing on record to suggest that such information supported by any documents was furnished before the adjudicating authority and request for such a relief was made. The appellants have neither furnished copies of work orders awarded to them evidencing year wise providing of services of Supply of Tangible Goods nor have never raised this issue before the lower authority prior to th1s appeal and nor have furnished any adduced any evidence in confirmation of their contention. It is also on record that the appellants have relevant document in support of their contention either along with their appeal or during personal hearing. In absence of any such evidence, the adjudicating authority cannot be faulted. 8. I have examined the plea of revenue neutrality advanced by the appellants. The contention of the appellants is that demanding of service tax will resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts have admitted as under- 7. It is submitted that in the written submissions filed at the time of hearing before the_ adjudicating authority, it was reiterated that Appellant does not want to contest the SCN on merit, .. In addition to above, the delayed filling of application for registration as well as late filling/ non filling of statutory returns is manifest from the records. The appellants themselves in Para F.9 of their appeal have admitted this fact by way of contending that mere non-registration or non-filling of returns does observed and held as under - not amount to suppression . I find that the adjudicating authority on page (4) of impugned order, has 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 in spite of the fact that they have rendered taxable services and received payments thereof and also the amount of service tax and later also obtained service tax registration and charged service tax from the clients. The gross amount received by the party against providing taxable services was not disclosed to the department with clear intent to evade the payment of service ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of Section 80 of the Finance Act, 1994. 12. It is found that the adjudicating authority has given substantial relief to the appellants by reducing the demand of tax from Rs 12,58,690/- to Rs 4,80,077/- 4.8 Thus, the findings or facts rendered by both the authority no non-payment/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 4,11,026/-. The difference in two is on account deduction claimed by the appellant treating certain amounts received as amount towards provident fund. However adjudicating authority has specifically arrived at finding that the issue of provident fund is not even the part of present show cause notice and separate proceeding have been initiated against the appellant by another show cause notice. This finding is not in dispute. 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. 4.9 The above findings cannot be disputed, as the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 hence, it is ordered that b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty at the time of clearance of the goods and the other, clearing the excisable goods without payment of duty either under some Exemption Notification or under some other legal provision. It was in such circumstances that the Tribunal had taken the view that when the option of clearing the goods without payment of duty was simultaneously available to the assessee, the non-payment/short payment was not attributable to any intention to evade payment of duty. In the other seven cases viz., cases against Sl. No. 1,3,5,9,10,11 and 12 in the list of cases mentioned in Para 9 above, the option of availing Modvat credit was available to the assessee even though he was not availing of it. In the present case, the claim of the appellants that duty free clearance under Notfn. No. 214/86 was concurrently available to them and therefore no intention to evade duty payment can be inferred does not appear to merit acceptance since it is not in dispute that the appellants were admittedly availing of modvat credit under Rule 57A and Rule 57Q. There is also no evidence on record to show that MUL had given any undertaking under Para 2 of Notfn. No. 214/86 in relation to the manufactured items sold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voking the said provision are in par materia with the ingredients to proviso to Section 11A(1). Having regard to the view we have taken above, where no legal infirmity in invoking the proviso to Section 11A(1) is shown to exist, there will also be no infirmity in invoking of penal provision under Section 11AC. 13. In the light of the above discussion, we answer the reference as under: (a) Revenue neutrality being a question of fact, the same is to be established in the facts of each case and not merely by showing the availability of an alternate scheme; (b) Where the scheme opted for by the assessee is found to have been misused (in contradistinction to mere deviation or failure to observe all the conditions) the existence of an alternate scheme would not be an acceptable defence; (c) With particular reference to Modvat scheme (which has occasioned this reference) it has to be shown that the Revenue neutral situation comes about in relation to the credit available to the assessee himself and not by way of availability of credit to the buyer of the assessee s manufactured goods; (d) We express our opinion in favour of the view taken in the case of M/s. International Auto Products (P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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