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TMI Blog2025 (1) TMI 1320X X X X Extracts X X X X X X X X Extracts X X X X ..... en done in the earlier round which we do now in the remand proceeding as per the directions of the Hon'ble High Court.
As the amount due have been paid even prior to the issuance of Show Cause Notice, the penalties could not have been imposed in respect of these demands which are confirmed as per para 4.5. Thus it is not required to interfere with the earlier order, to the extent of setting aside the entire penalties as on all other demand, the earlier order of this Bench in these appeals setting aside the demand and penalties, agreed upon.
Conclusion - The amount due have been paid even prior to the issuance of Show Cause Notice, the penalties could not have been imposed in respect of these demands.
Appeal disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... ack to the Tribunal, Allahabad for taking decision afresh with certain directions vide their order dated 13.04.2017 which is still pending for final decision at Hon'ble Tribunal, Allahabad.?" ********************** 5. The respondent herein is engaged in providing authorized service station service from its two units at different premises in Lucknow. They are registered with the Service Tax Department. During the course of inquiry about their service tax liability they were enquired about their service tax liability for the periods 2012-13 to 2016-17 vide show cause notice dated 20.11.2017. The said show cause notice was issued by invoking the extended period of limitation. The reply to the show cause notice was submitted by the respondent with details of income along with the audited balance sheets. On scrutiny of reply and the documents, the appellant observed that the respondent had earned taxable income under various heads which were not shown in their ST-3 Returns. It was also observed that the services provided by the respondent in respect of the Car Insurance policies sold to the customers and receiving Commission from insurance companies, in arranging finance fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal in Appeal is not sustainable and liable to be set aside. 8 Per contra, learned counsel for the respondent, though, vehemently opposed the submissions of learned counsel for the appellant, but could not dispute the fact that the order dated 17.12.2015 has not attained finality and the same is pending before the Tribunal after remand by this Court, which involves similar issue. 9. Having heard learned counsel for the parties and after going through the material placed on record of the appeal, we find that the show cause notice dated 20.11.2017 was issued for the period 2012-13 to 2016-17 raising similar demands of service tax which were made for the period 2002-03 to 2006-07 in regard to which the demand was raised by means of the show cause notice dated 16.10.2008. The same was confirmed by the adjudicating authority vide its order dated 30th of October 2009, which was challenged in appeal before the Tribunal. The Tribunal vide its order dated 17.12.2015 had set aside the entire demand. The order dated 17.12.2015 was challenged before this court in Central Excise Appeal No.7 of 2016, in which two substantial questions of law were framed, which are as follows:- " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it is incumbent upon the Tribunal to decide the issue afresh in accordance with law and unless the Tribunal decides the issue it cannot be said that the said order dated 17.12.2015 has attained finality and adjudicating authority should follow the judgment and order passed by the Tribunal, which is still pending for fresh consideration. Therefore the Tribunal ought to have decided both the appeals, involving several common issues, together. Thus the substantial question of law involved in this appeal is answered accordingly. 12. In view of above, we are of the considered opinion that the impugned judgment and order dated 04.02.2022 is not sustainable and the appeal is liable to be allowed. Accordingly, the appeal is allowed. The impugned judgment and order dated 04.02.2022, passed in Final Order No.ST/A/70065-70066/20220CU (DB) passed in Service Tax Appeal No.70567 of 2019: M/S Anand Motor Agencies Ltd. versus Commissioner of Customs, Lucknow is set aside only to the extent of passing of the order in the said appeal. However, it will have no effect on the order passed on Service Tax Appeal No.70005 of 2019. 13. The Tribunal is directed to decide Service Tax Appeal No.70567 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of service tax in this regard, as claimed by them. Therefore, they are liable to pay Service tax under "Business Auxiliary Service" under the head of "Incentives received from Financers", alongwith interest under Section 75 of the Finance Act, 1994, as proposed in the impugned show cause notice." 20. Regarding the issue of liability of Service tax on consideration received from "Sale of Services" against the subheading 'Job receipts' (Net), the Noticee has submitted that there is no short payment of Service tax with the income of Job work as provided in the audited Profit & Loss Account during the period of dispute and the department has raised the demand without reconciling the Periodical ST-3 return with the audited Profit & Loss Account for the corresponding year. The Noticee has not disputed the levy of service tax the amount of "Sale of Services" against the subheading Job receipts (Net), therefore, there is no dispute regarding the taxability of amount under such head. I find that the Noticee has not submitted any documentary evidence for payment service tax in this regard, as claimed by them. Therefore, they are liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re demand as confirmed by the Commissioner. However, Tribunal has in Para No.2 observed as follows:- 2. Service tax on finance pay outs. It is observed and has not been disputed that during the period in question, the appellant had availed cenvat credit on capital goods and had utilized the same for service tax liability on finance pay outs falling under business auxiliary services. The adjudicating authority has failed to consider that the service tax liability with respect to finance pay outs, therefore, stands discharged though partly through cenvat and partly through cash. The demand is, therefore, held to have wrongly been confirmed. 6. Service tax on consumables used during the course of servicing of the vehicles.: The appellant vide its letter dated 7th March, 2019 had submitted documents with respect to repair and maintenance of computer, building, plant and machinery. Documents with respect to security expenses, travelling expenses, legal expenses, freight expenses have also been submitted by the appellant but the orders under challenge are observed to not to have considered those documents also the challans amounting to deposit of Rs.4,16,35,200/- during the entir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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