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2019 (12) TMI 338 - CESTAT NEW DELHIRecovery of service tax - telephone services - Short-payment of service tax as per reconciliation of ST-3 returns and with income shown in accounts and interest thereon - HELD THAT:- Apparently and admittedly document of defence was produced by the appellant before the adjudicating authority below reflecting the extra payment of service tax by the appellant. Such document has already been allowed to be placed on record by this Tribunal. The document has been prepared in accordance of the ST-3 returns as were filed by the appellant during the period of dispute which are already the part of the impugned order - Since the document is in the form of calculation chart, it would be appropriate that this issue be remanded back to the adjudicating authority below for re-verification of the impugned ST-3 returns - appeal allowed by way of remand. Short-payment of service tax on proceeds of Modem being part of taxable services along with interest thereon - whether the Modem was given to the customers free of cost or as to whether the value thereof was included in the value of telecommunication services provided by the appellant? - HELD THAT:- The said question cannot be adjudicated unless and until there are appropriate invoices on record proving that no amount has been received by the appellant from their customers in lieu of providing them with the Modem or that supply of Modem was purely a trading activity of the appellant. In the absence thereof, the adjudicating authority has committed no error while forming the opinion that the appellant has not paid service tax on the gross amount charged from the customers inasmuch as they have also charged for the Modem provided to the subscriber and that the same is justified - Since admittedly, the goods did not involve payment of VAT, the question of those being purely a trading activity cannot be ascertained - there are no reason to differ from the observations that Modems rather were typically the part of service provision - demand upheld. Wrong availment of service tax credit on rent-a-cab services along with interest thereon - HELD THAT:- The availment of utilisation of Cenvat credit on rent-a-cab services has duly been acknowledged on behalf of the appellant. Admissions are the best evidences. Otherwise also there is clear cut finding by the adjudicating authority below which, in the light of the aforesaid acknowledgment, we do not find any reason to differ - demand upheld. Wrong availment of service tax credit on invoices on which service tax registration number/STC of service provider are not mentioned along with interest thereon - HELD THAT:- There is no denial about the impugned invoices to have all details except the PAN based registration number of the service providers. There is also no denial that all such registration numbers were provided by the appellant. The appellant has acknowledged that M/s L.K. Enterprises only one of the service providers among the said list has not deposited the service tax. However, remaining all have discharged their liability. There is nothing on record produced by the Department to falsify the discharge of liability by the remaining service providers - There is no denial that the impugned input services have been utilised by the appellant in provision of output service - the entire demand on account of this issue except for the liability of M/s L.K. Enterprises is set aside - adjudicating authority is required to arrive at the appropriate calculation as far as the amount on account of M/s L.K. Enterprises is concerned so as to be recovered after deducting the same from total demand as was confirmed by the adjudicating authority below but now stands dropped except for such amount as is directed to be calculated by the authority below. Non/short payment of service tax on telephone service provided to employees - HELD THAT:- The service recipient being the employees of the appellant no other object then that of efficiency of appellant services is found to be a reason for given services to the employees. In the given circumstances, there is no separate service recipient then the employees of appellant itself. Resultantly, the impugned service here in is the service to self Section 67(1) of the Service Tax Act is held to have wrongly invoked as since there is no consideration to question of any taxation at all arises - Demand set aside. Non-reversal of Cenvat Credit under Rule 6(3) of Cenvat Credit Rules, 2004 - HELD THAT:- Qua this liability also there is an apparent acknowledgement on part of the appellant that the proposed amount of credit has already been reversed by them. There is no otherwise submission nor the documents to falsifying the said reversal. In view thereof, the order disallowing the credit taken under Rule 6(3) of Cenvat Credit Rules, 2004 and reversal thereof is hereby upheld. Appeal allowed in part.
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