TMI Blog2007 (1) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax was leviable on service rendered by the Architects. The appellants are Architects and no qualified engineers. They may be rendering services which a consulting engineer does. But that does not mean that they become consulting engineers. Thus no service tax as consulting engineers is leviable on them prior to 16-10-1998. (ii) The following amounts are liable to be deducted for calculating the service tax liability. (a) An amount of ₹ 99,08,228/- for the services rendered prior to 16-10-1998. (b) ₹ 9,73,471/- deduction on account of the fact that the amount was received in foreign exchange and no tax is payable. (c) An amount of ₹ 5,00,000/- in respect of the amount received from M/s Malab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be imposed. (d) The charge of failure to take registration under the heading consulting engineer and therefore there was suppression is not sustainable as the appellants were not covered under the heading consulting engineer as rightly held by the Commissioner (Appeals) himself. (e) In the circumstances no allegation of suppression with an intention to evade tax warranting invoking the larger time limits justified. (f) Section 78, clearly provides that in respect of penalty for suppressing the value of taxable service exceeding a sum of ₹ 25,000/-, the Assistant Commissioner or Deputy Commissioner shall not issue any direction for payment by way of penalty without the previous approval of the Commissioner. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gineering services and Architectural services and a lumpsum amount is charged for both the services. In such cases service tax will have to be collected on the entire amount charged. However, if separate break up is given in the bill for engineering services and architectural services, then service tax need to be paid only on the charges for engineering services. The party has neither disputed the fact that he provides both engineering and architectural services nor has maintained separate accounts for engineering and architectural services. It is evident from the letterheads, the agreements entered into with the clients, his account books and finally from his own statement that he renders both Engineering and Architectural service. Furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. MIMS show that during the period 7-7-98 to 31-11-98 an amount of ₹ 52,12,500/- was received by the assessee but they have accounted only an amount of ₹ 46,17,700/- thereby suppressing ₹ 5,94,800/-. This aspect is made clear in para 5 (i) of the Order-in-Original. The TDS of Income Tax letter is only in respect of the amount accounted and hence cannot be a ground for excluding liability of service tax. The assessee has not furnished any explanation as to how and why the amount is unaccounted. Therefore the amount of ₹ 5 lakhs cannot be allowed as deduction. Further the assessee s attempt to evade service tax by advising the client to alter the date of payment as discussed in para 4 (v) also has to be taken into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evaded and not ₹ 8 lakhs as reduced by the Commissioner (Appeals). 6. We have gone through the records of the case carefully. The Commissioner (Appeals) in the impugned order has given a finding as stated that the appellants are Architects and not qualified Engineers. He has stated that prior to 16-10-98, no service tax as Consulting Engineers is leviable on the party. This is seriously I challenged in the Revenue s appeal. While coming to the conclusion that the party is not liable to pay service tax prior to 16-10-98, the Commissioner (Appeals) has relied on the Trade Notice No. 1/98-S.T., dated 5-1-98. The Revenue has pointed out that the Commissioner has not properly read the Trade Notice. Para 6 of the said Trade Notice provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned order is not legal and proper for the reasons urged by the Revenue and also in view of the contentions of the party on account of time bar and want of jurisdiction to impose penalty of more than 25,000/- without Commissioner s permission as provided under Section 78 of the Finance Act, 1944, we set aside the impugned order and remand the entire matter to the Original authority for de novo decision in the light of our above observations. All issues are kept open. The party should be given an opportunity of hearing. The Original authority shall decide the issue after observing the principles of Natural Justice . The de novo order should be issued within a period of three months from the date of receipt of this order. (Pronounced in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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