At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
By, THE HONORABLE JUSTICE: RAMESH NAIR
By, MEMBER AND THE HONORABLE JUSTICE: RAJU
For Respondents: B. Kumar Iyer, Superintendent (A.R.)
1. This appeal has been filed by M/s. Unity Security Force against confirmation of demand of service tax and imposition of penalties under Section 75, 76, 77 & 78 of the Finance Act, 1994. No one appeared for the appellant and there was no adjournment request either. Earlier also no one appeared for the appellant except once when adjournment was sought by the appellant. Thus it seems appellant are not interested in appearing before the Tribunal and therefore we take up the matter for decision on merits on the basis of grounds of appeal. From the appeal memorandum it is seen that the appellants are engaged in provision of security service. A show cause notice was issued to them for the reason that the value of service shown in their profit and loss account was different that declared in their ST-3 return. In the grounds of appeal it has been stated that the demand amount was arrived at on erroneous interpretation of Clause 10 of the Agreement with Nagpur Municipal Corporation dt. 30.05.2008. It has been arrived at on the basis of one agreement and the Commissioner has failed to consider the accounting policy of the appellant. It has been argued that the Commissioner has wrongly reached the conclusion that the cum tax benefit cannot be extended. It has been argued that Commissioner has not considered that the appellant were crediting the entire amount received including service tax to their Profit and Loss Account. It has been argued that the appellants have deposited service tax amount of Rs. 4,59,665/- demanded show cause notice. The said service tax was deposited through TR6 challan which were attached to ST-3 returns.
2. It has also been argued that show cause notice was issued on 20.10.2011 and still penalties under both Section 76 & 78 has been imposed. It has been argued that after 10.5.2008, when the act was amended, penalties under both these Section cannot be imposed simultaneously. They have relied on decision in the case of CST Vs Motor World 2012 22 taxman 35/36 STT 48 . They have also argued that they had no intention to evade payment of duty in the facts of the case as they had disclosed all the material facts.
3. Ld. AR relies on the impugned order. We have gone through the rival submissions. It is seen that the appellants were registered under the category of security agency service. On comparison of the balance sheet figures of the notices when compared with ST-3 return filed by them showed certain differences. A demand of service tax on these differences was raised. It is seen that the impugned order dismissed the appellants claim that the amount received was inclusive of Service Tax relying on Claus 10 of agreement with Nagpur Municipal Corporation. The impugned order holds that the invoices do not specifically say that the gross amount charged includes service tax and therefore cum tax benefit cannot be granted. It is seen that the argument of the Commissioner is misplaced. It does not matter as to what is mentioned in the invoice as the price. The tax is based on the amount received and not the amount billed. The amount received need to be appropriated between the assessable value and the service tax. Liability can only be arrived on the basis of the total receipt and not on the basis of total amount billed. The payments received by the appellant need to be considered as total of assessable value and service tax and thus the appellants are entitled to the benefit of cum duty value on the receipt basis.
3.1. It is further notice that the appellants have not paid service tax on the total taxable value declared by them in their ST-3 return and consequently a demand of Rs. 4,59,665/- has been confirmed. The appellant in their appeal memorandum have contended that they have already paid this amount vide TR 6 challan which they claimed to have attached to their ST 3 return. The appellant had claimed that they will produced the said evidence during the hearing before Tribunal however no such evidence have been produced. In these circumstances there is no option but to confirm the said demand.
3.2. The appellants have not disputed that the figure show in their ST-3 Return did not match with the figures shown in their balance sheet. In these circumstances invocation of extended period of limitation is justified. It is seen that while imposing penalties under section 76 & 78, Commissioner has relied on the decision of Tribunal in the case of Commissioner of Central Excise, Chandigarh Vs. Grewal Trading Co : 2010 (18) STR 350 (Tri.-Del.) , wherein penalties under Section 76 & 78 for the period prior to 10.5.2008 have been upheld. The appellant in their grounds of appeal, have not given any reason why the same finding needs to be disturbed. Consequently imposition of penalty
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under Section 76 & 78 is upheld. 3.3. The appellants have not filed the S.T.3 returns in proper time and therefore penalties under Section 77 have rightly been imposed. 3.4. In view of the findings mentioned above, the impugned order is set aside and matter is remanded to the original adjudicating authority for redetermination of duty after granting cum tax benefit on receipt basis. The penalties under Section 76 & 78 also shall be re-determined accordingly the appeal is partly allowed by way of remand.