TMI Blog2019 (2) TMI 1569X X X X Extracts X X X X X X X X Extracts X X X X ..... was eventually even returned back, no Service Tax thereon can be demanded from the Appellant - matter remanded back to the original authority, to re-examine this issue and then determine actual taxable component on such transaction, after taking into consideration amounts already returned to customers as well as Service Tax already paid, though belatedly, by the Appellant. Demand of Service Tax of Rs.Rs.2,64,357/- raised on presumed receipt of money to the extent of ₹ 82,70,000/- presumably received by the Appellant as per certain scribbling made by the Accountant noticed at the premises of the appellant - Held that:- It is trite law that the onus is on revenue to prove their case beyond mere scribbling. In absence of any proof regarding receipt of such consideration, demand on this count also must fail. Demand of Service Tax of ₹ 67,10,232/- on certain Cash income, purportedly received by the Appellant and not taken in books of accounts - Held that:- We agree with the Appellant that no independent corroborative evidence, except some loose entries in the computer of the Accountant has been adduced by the revenue authorities to substantiate such serious charge. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the hearing conceded to the same considering smallness of the amount - The said demand is therefore confirmed. Cenvat Credit of ₹ 6,18,478/-, - sought to be denied on the ground that it pertained to cancellation of certain bookings where tax was also refunded to prospective customers. At the same time, the revenue authorities allege that since tax was not paid originally, there is no question of allowing credit thereof (under Rule 6(3) of the STR, 1994) to the Appellant - Held that:- That inasmuch as the SCN at ANNEXURE A, B & C has already demanded Service Tax on whole of bookings, denying credit simultaneously on the ground that while upon cancellation refunds were made to customers, but Tax was not paid earlier, is not proper. That since such tax is demanded with interest, there is no need to deny credit simultaneously on cancelled bookings. In the given set of facts and circumstances, penalty on Director is also uncalled for and we set aside the same. As regards the plea that since the Appellant was under financial distress and hence there was delay in payment of Service Tax and reliance on the decision in the case of Onward E-Services Ltd [2018 (5) TMI 323 - C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tually provided to such persons. In fact, there is a specific provision under Rule 6(3) of the Service Tax Rules, 1994 for this purpose. We accordingly hold that to the extent of any amount which is considered as loans and advances and which was eventually even returned back, no Service Tax thereon can be demanded from the Appellant. It is only genuine advances towards construction service activity, which was not in the nature of loans and which was reflected as income in the books of the Appellant Company that can attract the Service Tax. The burden is upon revenue authorities to prove that what is received is service charge or advance relating thereto and not merely loans and advances. However, in the interest of justice, we would like to remand the matter back to the original authority, to re-examine this issue and then determine actual taxable component on such transaction, after taking into consideration amounts already returned to customers as well as Service Tax already paid, though belatedly, by the Appellant. The Appellant is directed to share necessary evidences and/or details with the Original authority for this purpose. Needless to mention, amounts which are actually re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collected but not paid Service Tax on this count, it is the case of the Appellant that the overall Tax liability eventually found payable, as compared to the tax already paid by the Appellant, will result in a situation where such tax is not payable anymore. Since we have already remanded portion of the issue qua Service Tax liability on Loans, even this issue may be re-examined by Original authority whether appropriate Service Tax on actual income stands discharged by the Appellant or otherwise. That as regards the Credit of ₹ 40,33,832/- sought to be denied to the Appellant on the ground that the Appellant had paid Service Tax under Works Contract (Composition Scheme), 2007 upto 30.06.2012, whereas the revenue authorities insist that such composition scheme up to 30.6.2012 is not eligible to the Appellant since land value was included in the gross charges. The revenue authorities on the other hand have forcibly considered Service Tax at marginally higher rate of abatement under scheme of Notification o1/2006-ST and in turn seek to deny Cenvat Credit availed on input services, to the Appellant. We find merit in the contention of the Appellant that if the revenue authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... envat Credit of ₹ 6,18,478/-, the credit is sought to be denied on the ground that it pertained to cancellation of certain bookings where tax was also refunded to prospective customers. At the same time, the revenue authorities allege that since tax was not paid originally, there is no question of allowing credit thereof (under Rule 6(3) of the STR, 1994) to the Appellant. That inasmuch as the SCN at ANNEXURE A, B C has already demanded Service Tax on whole of bookings, denying credit simultaneously on the ground that while upon cancellation refunds were made to customers, but Tax was not paid earlier, is not proper. That since such tax is demanded with interest, there is no need to deny credit simultaneously on cancelled bookings. In the given set of facts and circumstances, penalty on Director is also uncalled for and we set aside the same. As regards the plea that since the Appellant was under financial distress and hence there was delay in payment of Service Tax and reliance on the decision in the case of Onward E-Services Ltd 2018 (5) TMI 323-CESTAT Mumbai, we direct the original authority to consider the same in the course of re-adjudication of the specific issues sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
