9911796707
TMI Blog2024 (12) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... nd matter is remanded back to the original authority. The penalty imposed under section 78 is also set aside, to be recomputed after re-computation of the demand. Appeal partially allowed and the matter remanded to original authority for re-computation of demand and penalty under Section 78. - HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Shri Dharmendra Srivastava , Chartered Accountant for the Appellant Shri A. K. Choudhary , Authorised Representative for the Respondent ORDER SANJIV SRIVASTAVA : This Appeal is directed against Order-in-Appeal No.48-ST-ALLD-2022 dated 04/03/2022 of teh Commissioner (Appeals) Customs, Central Excise Service Tax, Allahabad. By the impugned order following has been held : In view of the above, I modify the impugned Order dated 17.11.2021, as under : (i) Confirmation of demand of Service Tax (including Cesses) is reduced to Rs. 9,00,763/- along with interest ; (ii) Penalty imposed upon the appellant, under Section 78 of the Act, is reduced to Rs. 9,00,763/-; (iii) Penalty of Rs. 10,000/- imposed under Sections 77(1)(d) shall. remain unchanged; and (iv) Penalty of Rs. 10,000/- imposed under Sections 77(1)(c) for non furnishing of records and l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Industrial Area, Kanpur; (iv) Interest at the appropriate rate for the relevant period till the payment of the Service Tax to be demanded and recovered from M/s New Tech Transformers,G-34,Road No.16, Udyog Kunj, Site-V, Panki, Industrial Area, Kanpur under the provisions of Section 75 of the Act; (v) I impose a Penalty of Rs.9,64,056/- (Rupees Nine Lakhs sixty-four Thousand fifty-six only) upon M/s New Tech Transformers, G-34, Road No.16, Udyog Kunj, Site-V, Panki, Industrial Area, Kanpur under Section 78 of the Finance Act, 1994 for the reasons as discussed above. Further, I give an option to the party to pay a 25% penalty of demand confirmed as provided in Section 78 of the Act, if Service Tax and Interest is paid within a period of 30 days of the date of receipt of this order. Further, the benefit of reduced penalty shall be available only if the amount of such reduced penalty is also paid within 30 days; (vi) I impose a penalty of Rs. 10,000.00 (Rupees Ten Thousand only) upon M/s New Tech Transformers, G-34,Road No.16, Udyog Kunj, Site-V, Panki, Industrial Area, Kanpur, under Section 77(1)(c) of the Finance Act, 1994 for failed to furnish the documents as desired by the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (Rupees Seventy Eight Lakhs Twenty Thousand Three Hundred and Fifty Seven only) received as per Form-26AS from their customer/service receiver during the Financial Year 2014-15 to 2017-18 [01.10.2014 to 30.06.2017] in lieu of providing the taxable services should not be treated as the value of taxable services provided by them and accordingly. why the short paid Service Tax amounting to Rs.9,00,763/- (Inclusive of Service Tax, Education Cess and Higher Secondary Education Cess/ Swachh Bharat/ Krishi Kalyan Cess) should not be demanded and recovered from them under the provisions of Section 73(1) of the Finance Act. 1994 invoking provisions of extended period of demand. (ii) Service Tax amounting to Rs.49,671/- by treating the taxable value of Rs. 14,16,012/- as per profit Loss account should not be demanded and recovered from the party against Freight paid by them during the period covered in the Show Cause Notice under the provisions of Section 73(1) of the Finance Act. 1994 invoking provisions of extended period of demand; (iii) Service Tax amounting to Rs.13,622/- by treating the taxable value of Rs. 95,200/- should not be demanded and recovered from the party against the Audi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reverse charge mechanism.. 3.3 Learned Authorised Representative reiterates the findings recorded in the orders of the lower authorities. 4.1 I have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 Impugned order records the findings as follows : 4.2 The appellant has contested that demand of service tax on the basis of balance sheet/profit loss account/FORM 26AS is not sustainable. I observe that in the instant case the appellant has submitted copy of balance sheet/profit . Loss account/FORM 26AS for the F.Y 2014-15 to 2017-18 vide letter dated 04.10.2019. Since copy of entire work order/agreement, bills/ invoices were not submitted to the department to ascertain exact nature of services rendered by them and to examine abatement or exemption available to them. It is on record (Para No.5 of the SCN that the department has written letter dated 14,10.2019, 25.10.2019 and summons dated 24.01.2020, 11.02.2020 and 09.02.2020 to the appellant for furnishing relevant information/documents but no compliance has been made on the part of the appellant. Last letter dated 29.05.2020 was issued by the department to furnish informati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structure meant predominantly for use as (i) an educational, (ii) a clinical, or(iii) an art or cultural establishment; or (c) a residential complex predominantly- meant for setfuse or the use of their employees or other persons specified in the Explanation 1 to clause (44) of section 65 B of the said Act; under a contract which had been entered into prior to the 1st March, 2015 and on which appropriate stamp duty, where applicable, had been paid prior to such date: provided that nothing contained in this entry shall apply on or after the 1st April, 2020 4.4 The appellant has provided copy of work order No. 2252/PVVNL(V)/MM/EE-II/EAV-228/12-13 dated 27.05.2013 issued by M/s PVVNL Varanasi for repair and testing of copper wound damaged distribution transformers 250 to 1000KVA capacities. On perusal of work order, I find that for the purpose of calculation of price variation of HV/LV Leg coil, transformer oil and excise duty, Up VAT, the break of repair package rates such as total labour charges, HV/LV Leg coil, transformer oil and supply items has been specifically mentioned. In Para 6 of said work order it has been mentioned that service tax along with educational cess shall be pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en specifically provided that service tax along with education cess will be payable by the appellant only on the labour charges. Having noted that the impugned order, should have- either restricted the demand to the extent of amount paid towards service tax by the service recipient; or determined the demand after allowing the benefit of composition scheme and partial recharge as per notification No 30/2012-ST. 4.5 However I find that the impugned order has proceeded to confirm the demand made on the basis of amounts reflected in the TDS return after denying the benefit of the exemption claimed by the appellant. Appellant has in submissions made before me not agitated the issue of exemption denied but have agitated the matter on re-computation of demand. I find the merits in the submissions made that demand needs to be recomputed. 4.6 In view of the discussions as above the demand made needs to be recomputed by treating the services provided to PVVNL as work contract service either on the basis determination of labour charges as per the work order or by allowing the benefit of composition scheme and partial recharge as per notification No 30/2012-ST. For limited purpose of re-comput ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
