TMI Blog2024 (3) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... f matter and require a finding from the original authority before that can be considered in appeal. Without expressing anything on the merits arguments the matter needs to be remanded for denovo consideration by the Adjudicating Authority. Appeal is allowed by way of remand. - HON BLE MR. P. K. CHOUDHARY, MEMBER ( JUDICIAL ) And HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Shri Amit Awasthi , Advocate Shri Raj Shukla , Advocate for the Appellant Shri Santosh Kumar , Authorized Representative for the Respondent ORDER SANJEEV SRIVASTAVA : This appeal is directed against Order-In-Original No.KNP-EXCUS-000-COM-009-15-16 dated 17.09.2015 of the Commissioner, Central excise and Service Tax, Kanpur. By the impugned order following has been held:- (i) I hold that value of 'consumable stores' and 'salary paid to their staff as deducted by the party from the gross receipts of taxable services is liable to be included in the taxable value of services of 'Cleaning Activity' provided by the party during the period from 01.04.2009 to 31.03.2014. As well, w.e.f. 01.07.2012 abetment/exemption claimed by the party under Notification No. 15/2012-ST dated 17.03.2012 as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A show cause notice was issued on the basis of 3rd Party information received from the Income Tax Department. It was alleged that appellant was suppressing the value of taxable services provided by referring to Form 26 AS. By show cause notice dated 24.10.204 appellant were called to show cause as to why:- (a) the values of consumable stores and salary paid to their staff for the period from 01.04.2009 to 31.03.2014 should not be considered as the value of taxable service provided in the category of CLEANING ACTIVITY services and abatement/ exemption w.e.f. 01.07.2012 claimed under Notification No. 15/2012-ST dated 17.03.2012 as superseded vide Notification No. 30/2012-ST dated 20.06.2012 should not be denied to them, and the amount of Rs. 18,60,99,011/- received by them from service recipients of CLEANING ACTIVITY services should not be considered as taxable amount of Cleaning Activity services provided by them during the period from 01.04.2009 to 31.03.2014 and short-paid Service Tax to the tune of Rs. 2,03,45,896/- (including Edu. Cess and S.H.E.C.) thereon for period from 01.04.2009 to 31.03.2014, should not be demanded and recovered from them under proviso of Section 73(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not properly represented before the adjudicating authority. Adjudicating authority was left with no option but to decide the issues raised in the show cause notice without any submissions on the issues framed in the order. CASE FOR THE PARTY 25. Smt. Shveta Bajpai, Proprietor of M/s Arrow Commercial Services responded to the impugned Show Cause Notice dated 24.10.2014 vide their reply dated NIL but received on 20.11.2014, wherein proprietor of the party mainly stated that:- ➢ Impugned liability of Service Tax to the tune of Rs. 2,03,45,896/- is neither correct not justified as per law of Service Tax like non-consideration of expenditures incurred as per exemption provided in the act; ➢ Copies of agreements/contracts and bill etc., of the service provided, Service Tax paid and brief details along with supporting documents were submitted by them on 19.03.2014 in response to the query raised; ➢ Total receipts from the financial year 2009-10 to 2013-14 was clearly shown and a separate calculation for every year was explained that how they derive the taxable value of Service Tax and details of payment challans 26. In continuation to previous reply dated 20.11.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid Service Tax of Rs. 2,03,45,896/-is demandable and recoverable from the party under the provisions of Section 75 of the Finance Act, 1994. (vi) Whether penalties are imposable upon the party under Sections 77(1)(b) 77(1)(c), 77(1)(d), 77(1)(e), 77(2) and 78 of the Finance Act, 1994 29. Now at the outset, taking up the issues involved in the present case, I observe that there is no dispute regarding taxability of the party s activities for providing services of Cleaning Activity during the period relevant to April, 2009 to March, 2014; that the party itself had taken Service Tax registration in the category of Cleaning Service in July, 2005; that after an inquiry initiated against the party by the department, the party accepted their Service Tax liability of Rs. 2,46,476/-, Rs. 2,76,452/- and Rs. 1,84,558/- relevant to the Financial years 2009-10, 2010-11 and 2013-14 respectively submitting that Service Tax of Rs. 4,61,706/- and Rs. 3,04,050/- relevant to the financial years 2011-12 and 2012-13 had already been paid by them; that the party while computing their Service Tax liability relevant to the period from April, 2009 to March, 2014 against provision of taxable service of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntary proof showing the value of the goods and materials sold by them to the service recipients. In the instant case, I observe that the condition laid down in the Notification No. 12/2003-ST dated 20.06.2003 was a mandatory condition at the relevant time, and therefore, I have to take a view on the settled position of law regarding exemption Notification and fulfillment of conditions. 30.1 I find that the Constitution Bench of the Apex Court in case of CCE, New Delhi Vs. Harichand Shri Gopal [reported in 2010 (260) B.L.T. 0003 (SC|) has held that- 22. The law is well settled that a person who claims exemption or 4.4 From the above paragraphs it is evident that the appellant has not made any submissions before the adjudicating authority on most of the issues raised in the show cause notice. We find that the demand has been confirmed by the Original Authority without any response from the appellant and in its without consideration of various issues in proper perspective. In the absence of any response on these issues the order is a nonspeaking order and it requires the application of mind of the Adjudication Authority to these issues which are being raised by the appellant in the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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