9911796707
TMI Blog2025 (1) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... oration. On such services, the Service Tax was being paid by the appellant on composition scheme basis since the contract involved both supply of goods and supply of service. For the services rendered, proper ST 3 Returns were being filed. Due to some error in the system, in case of 38 Invoices, the Service Tax percentage was shown at full value. On the ground that the appellant has realized the Service Tax at full value but they have discharged the Service Tax based on composition rate, a Show Cause Notice was issued on 17.10.2014 for the period 2009-10 to 2012-13, by invoking the extended period. The appellants clarified that though the Invoices were raised with full Service Tax rate, such Invoices were never submitted to the client nor h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order confirming the Service Tax demand may be set aside on merits. 3. The Ld Counsel also takes a strong stand on account of limitation, on the ground that the Show Cause Notice was issued only on 17.10.2014 for the period 2009-10 to 2012-13. He submits that all the details of the 38 Invoices was properly recorded in the books of account of the appellant as to how the mistake has occurred and how proper entries were made to bifurcate the VAT and Service Tax component. The Audit team just took note of the Invoices but failed to go through the records put up before them towards rectification of such mistakes. The appellant is a registered assessee, paying Service Tax and has been filing ST 3 Returns. Even the quantification of deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Tax than what was remitted the present demand was raised. The Adjudicating authority has found that in case of 8 invoices, the Revenue was in error in raising the demand and has dropped the same. The appellants have been maintaining that the full Service Tax was reflected in the Invoices, but such Invoices were never sent to the client, not they have paid the full Service Tax to the appellant. On the other hand, the appellants have passed rectification entries in their books of account to the effect that the total Tax is to be divided under the heading of VAT and Service Tax. The VAT amounts have been remitted to the concerned authorities. To this account they have produced the Certificate from the Chartered Accountant, which is being e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tomers. We find that neither the OIO nor the impugned order have contradicted the certificate given by the Cost Accountant. It is not open for Revenue to arrive at a conclusion in disregard of the certificate without challenging or controverting the same with cogent evidence and reasoning. It was held in Sipani Automobiles Ltd.- 2004 (176) ELT 807 (Tri. Del.) that: 7. It is settled law that the presumption is that the incidence of duty paid on raw material must have been passed on by the manufacturer to the customers of its final product and it is to be proved by the manufacturer that the incidence of duty had not been passed on. This presumption is a rebuttable one. The Appellants in the present matter has produced a Certificate dated 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accountant." Following the said decision, we hold that the Appellants are entitled to get the amount of refund sanctioned to them by the Adjudicating Authority. 9. We find that to the factual matrix of the present case, the cited case is squarely applicable. Accordingly, set aside the confirmed demand of Rs.75,20,988/- along with interest and penalties imposed thereon and allow the appeal on merits. 10. We also find ample force in the appellant's argument that the Show Cause Notice issued on 17.10.2014 for the period 2009-10 to 2012-13. The requisite details have been found from the books of accounts maintained by the appellant, which were made available to the Audit team. Even the proper rectification making entries were put up before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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