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TMI Blog2024 (11) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, the same may be appropriated against the demand confirmed. Also, no penalty imposable on this amount confirmed, as this amount has been paid by the assessee before issuance of the Show Cause Notice. Assessee has imported services on which Service Tax has been demanded and confirmed on reverse charge basis - We observe that this issue has been raised by the audit during the course of audit conducted on the assessee by the Audit Branch of the Service Tax Commissionerate. A perusal of the Audit Report raised by the audit, reveals that the audit team has perused the foreign remittances made by the appellant during the Financial Years 2008-09, 2009-10, 2010-11, 2011-12 and 2012-13 and after perusal, has arrived at a conclusion that the Service Tax liability in respect of the Financial Years 2008-09, 2009-10, 2010-11 and 2011-12 are not liable to be taxed at the hands of the assessee. Audit team has raised the Service Tax demand on these foreign remittances only in respect of the Financial Year 2012-13 - We observe that the Show Cause Notice was issued to the assessee for the Financial Years 2008-09 to 2012-13, ignoring the findings of the audit team. In view of the findings of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to avail. The assessee submitted the invoices raised by the transporter and submitted that it is categorically mentioned in the invoices that the service is related to transportation of some of their employees after office hours, which is related to their business activity of running the hotel. On a perusal of the documents submitted by the assessee, we find that the assessee have provided vehicles to the employees for dropping them after office work. Thus, the transportation service was used in connection with the rendering of the taxable services by the assessee. Accordingly, we hold that this service is eligible as an input service to the assessee and the assessee are eligible to avail CENVAT Credit in respect of these transportation services availed by them. Accordingly, the demand of irregular credit is not sustainable and hence we set aside the same. We pass the following order in respect of the appeal filed by the assessee: (i) In respect of the demand of Rs.50,19,379/-, the demands pertaining to the Financial Years 2008-09, 2009-10, 2010-11 and 2011-12 are set aside, on the ground of limitation. Regarding the demand of Rs.11,57,196/- out of the above demand pertaini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice Tax under the following categories: - i. Mandap Keeper Service ii. Renting of Immovable Property iii. Electricity Charges iv. Foreign Remittances 3. The said Notice was adjudicated by the Ld. Commissioner vide the impugned Order-in-Original Sl. No.53/COMMR/ST-I/KOL/2015-16 dated 14.03.2016 wherein he has confirmed the demand of Service Tax of Rs.50,19,379/- and dropped the remaining demand totally amounting to Rs.61,81,091/- [Rs.1,34,256 + Rs.52,530/- + Rs.59,94,305/-]. The ld. adjudicating authority has also ordered for recovery of the irregular credit of Rs.18,17,206/-, along with interest. A penalty of Rs.68,36,585/- was also imposed on the assessee. 4. Aggrieved against the confirmation of the demands, the assessee has filed the Service Tax Appeal No. 75967 of 2016. 4.1. The Revenue has filed the Service Tax Appeal No. 76208 of 2016 against dropping of the demand to the extent of Rs.59,94,305/-. No appeal has been filed by the Revenue in respect of the remaining demands dropped in the impugned order. 4.2. As both these appeals emanate from the same Order-in-Original, both are taken up together for decision by a common order. 5. The assessee has submitted that out of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submit that the demand of service tax from them is not sustainable. 5.1.5. The assessee further contended that they have made the above submissions before the ld. adjudicating authority, but these claims of the assessee have not been accepted. The Ld. adjudicating authority has not given any findings on their submissions. Accordingly, the appellant submits that the demand of Rs.46,82,053/- confirmed vide the impugned order is not sustainable in law. 5.2. The assessee also submits that the demands for the Financial Years 2009-10, 2010-11 and 2011-12 are barred by limitation. It is stated that the audit officers had conducted audit of the assessee and raised an objection on this issue wherein, after verifying the documents, they have demanded the tax amount of Rs.11,57,196/- for the Financial Year 2012-13 only; however, the Show Cause Notice was issued for the period from 2009-10 to 2012-13, by invoking the extended period of limitation ignoring the audit objection raised only for the period 2012-13. Accordingly, the assessee submits that the demands for the Financial Years 2009-10, 2010-11 and 2011-12 are not sustainable on the ground of limitation also. 6. With regard to the demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal records. 9. We observe that out of the demand of Rs.50,19,379/- confirmed in the impugned order, the assessee has claimed that they have paid Rs.3,37,326/- before issue of the Notice and to this effect, they have submitted evidence in respect of the payment made. We have perused the said documents and found that this amount has been paid by the assessee before issuance of the Show Cause Notice. The Annexures to the Show Cause Notice confirm this payment by the assessee before issue of the Show Cause Notice. However, we find that the ld. adjudicating authority has not taken cognizance of the same and not appropriated the same in the impugned order. Since the amount of Rs.3,37,326/- has already been paid along with interest before issue of the Notice, the same may be appropriated against the demand confirmed. Also, no penalty imposable on this amount confirmed, as this amount has been paid by the assessee before issuance of the Show Cause Notice. 9.1. Regarding the remaining amount of Rs.46,82,053/-, we observe that the assessee has imported services on which Service Tax has been demanded and confirmed on reverse charge basis. We observe that this issue has been raised by the aud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady reversed the Service Tax credit amounting to Rs.17,00,404/- even before issuance of the Show Cause Notice, along with interest. The assessee submitted evidence with respect to this payment. we find that the ld. adjudicating authority has not taken cognizance of the same and not appropriated the same in the impugned order. Since the amount of Rs.17,00,404/- has already been paid along with interest before issue of the Notice, which is evident from the Annexure to the Show Cause Notice. Accordingly, we observe that the said payment may be appropriated against the demand confirmed. Also, no penalty imposable on this amount confirmed, as this amount has been paid by the assessee before issuance of the Show Cause Notice. 10.1. Regarding the balance irregular credit availed amounting to Rs.1,16,802/-, the assessee have submitted that this is related to Service Tax credit availed in respect of transportation of their employees after office hours and hence it falls within the ambit of 'input service', which they are entitled to avail. The assessee submitted the invoices raised by the transporter and submitted that it is categorically mentioned in the invoices that the service i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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