9911796707
TMI Blog2025 (1) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... a Vidyut Vitaran Co. Ltd., the appellant is a State Government company registered with the Service Tax department. During the course of the scrutiny of appellant's record i.e. ST-3 return for the period from October March 2015-16 as well as the challans showing payment of service tax, it was observed that: (i) Challan for November 2015 pertaining to a different registration number was utilized for payment of service tax by the appellant. The challan was generated in favour of Regional Accounts Officer, Rao Sagar but appellant utilized the same resulting into short payment of service tax amounting to Rs. 5,68,451/-:- (ii) The service tax was paid @ 12.36% on Works Contract Service under Reverse Charge Mechanism despite that it was revise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lready been paid. However, it has wrongly been deposited in the name of appellant's another unit at Rao Sagar instead of it being deposited in appellant's head office at Jabalpur's account. Learned counsel has impressed upon that there is sufficient evidence that Rao Sagar unit of appellant has not utilized the payment through the challan in their service tax returns or the elsewhere. Hence the tax stands duly deposited for the amount in question and the appellant cannot be asked to deposit the same amount of tax twice. 4.1 The demand on three of these issues is also objected as being barred by time. It is submitted the demand has been raised based upon the appellant's own documents verified during the audit. No additional evidence is prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority below. As per the said circular the payment made in the wrong accounting code can be adjusted. However, in the present case the payment is made in the name of the different assessee. Hence there is no infirmity in the findings while confirming the demand of service tax of Rs. 5,68,451/-. The short payment of Rs. 42,188/- and of SBC amounting to Rs. 22,344/- is purely on the basis of payment not being made as per the prescribed rate of duty. Hence there is no infirmity in those findings. With respect to the demand of service tax of Rs. 2,10,11,500/-, the findings in the order under challenge have purely been relied upon. Learned Departmental Representative further submitted since the appellant has short paid the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issues is therefore, beyond the normal period prescribed under Section 73 of Finance Act, 1994 / 11AC of Central Excise Act, 1944. Both these observations and that there is no other evidence except appellant's own document to prove the alleged act of suppression on part of appellant, we hold that the aforesaid provisions have wrongly been invoked while issuing the show cause notice. Therefore, the show cause notice is held to be barred by them. We draw our support from the decision of Hon'ble Apex Court in the case titled as CCE Vs. Chemphar Drugs & Liniments - 1989 (40) ELT 276 (SC) - Extended period is applicable only when something positive other than mere inaction or failure on the part of the manufacture is proved. Conscious and deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is an agreement entered into between the parties in terms of which the promisee agrees to refrain himself from an act or to tolerate a situation or to do an act in return of a consideration from the promiseer. However, in the present case, subject matter of agreement is to supply various goods or services or both these stipulated period. There is no agreement by the other party to not to supply the goods or to not to render the services nor there can be the intention of the other parties to get penalized. 10. Declared service, otherwise, has first to be a service which in terms of Section 65(B)(44) of Finance Act, 1944 is any activity carried by a person for another for consideration. The term consideration is defined in explanation (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailing to supply goods or executing the work within the stipulated time schedule and for the loss suffered on account of breach of contract of purchase or sale. The demand was set aside by the department itself by Commissioner (Appeals) vide an order August 2, 2019. The appeal against the said order has been dismissed by this Tribunal vide Final Order No. 50610 of 2022 in Service Tax Appeal No. 50824 of 2020. We have no reason to differ from the said findings. Hence we hold that on demand even on issue No. (4) has been wrongly confirmed and the same is also liable to be set aside. However, learned counsel has also stated at bar that the appellant shall not be applying for the refund of the amount deposited vis-à-vis issue No. (i), (i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
