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TMI Blog2025 (3) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... r referred to as the "appellant"), a Show Cause cum Demand Notice under C.No. V(15)210/ST-Adjn/Commr/12/24509 dated 16.10.2012 was issued to the appellant demanding Service Tax of Rs.51,94,915/- alleging short payment of Service Tax by the appellant during the Financial Years 2007-08 to 2011-12. 1.1. The said notice was adjudicated by the Ld. Commissioner of Service Tax, Kolkata vide the Order-in-Original No. 09/Comm/ST/KOL/2014-15 dated 22.05.2014 wherein Service Tax demand of Rs.50,93,353/-, along with interest, was confirmed and a penalty equal to the tax demand confirmed was also imposed under Section 78 of the Finance Act, 1994. 1.2. Aggrieved against the confirmation of the said demands, the appellant has filed this appeal. 2. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 278.00 3 2009-10 -2,81,496.00 4 2010-11 -17,90,332.00 5 2011-12 +61,340.00 Total -18,54,859.00 2.2. Regarding the balance amount of Rs.18,54,859/-, the appellant submits that they have amount received prior 31.3.2003 has been written off the amounts received prior to 31.03.2003 in the year 2010-11. However, the written off amount has been considered as income for the year and tax on the same has been demanded. Service tax on the written off amount of Rs. 1,75,55,398/- is worked out to Rs. 18,08,206.00. 2.3. The appellant also submits that they have claimed CENVAT Credit amounting to Rs. 9,52,922.00 up to the year 2010-11 and CENVAT credit of Rs.2,82,208/- for the year 2011-12, in the ST-3 returns filed by them; but, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to pay Service Tax on the export of service from India to Japan, whereas the actual service is rendered by their Japan Branch to their Indian client namely, MMTC; hence, Service Tax, if any payable, will be payable by the recipient viz. M/s. MMTC Limited under reverse charge mechanism. Therefore, the appellant contends that the demand confirmed in the impugned order on this count is not sustainable. 4. Regarding the demand of Service Tax of Rs.8,17,482/- on account of non-inclusion of electricity charges collected from the tenants in the taxable value, the appellant submits that they have collected the said electricity charges from the tenants as a pure agent; this amount is not liable to Service Tax as whatever electricity charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Heard both sides and perused the appeal records. 10. We observe that the Service Tax amounting to Rs.50,93,353/- has been confirmed on various counts in the impugned order. 10.1. Regarding the demand of Service Tax of Rs.34,07,106/- confirmed under the category of 'technical inspection and certification service', we find that the appellant has made excess payment during the years 2007-08 and 2011-12 and short payment during the years 2008-09, 2009-10 and 2010-11. However, we note that the Department has only taken into account the short payment made and ignored the excess payment done by the appellant. If the excess payment is taken into consideration, the actual short payment would be Rs.18,54,859/-, as per the work-sheet submitted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by them for the year 2011-12. If the credit is available, then the same would be available to the appellant to make the payment. We also observe that no service tax is payable by the appellant on the amount of Rs. 1,75,55,398/- written off by the appellant, as the appellant has not received this amount. We observe that till 01.04.2011, service tax is payable on receipt basis. No service tax is payable, if it is established that the amount is not received prior to 01.04.2011. In the present case, since the appellant has written off an amount of Rs.1,75,55,398/- on which the Service Tax liability works out to Rs.18,08,206/- This written off amount cannot be considered as income of the appellant in the year of write off and service tax ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst this liability. 10.5. Regarding the Service Tax liability of Rs.2,90,348/- confirmed, it is the submission of the appellant that the said demand has been wrongly calculated and that the correct liability would be Rs.1,60,316/-, which they claimed to have deposited. In this regard, the appellant has submitted a CA certificate which needs to be considered and the liability of service tax on this count needs to be re-worked on the basis of the CA certificate. As the appellant has questioned the calculation of Service Tax liability, we are of the view that the issue needs to be remanded back to the adjudicating authority, for verification of correctness of the claim made by the appellant. 11. It is also observed that the appellant has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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