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2018 (11) TMI 1468 - AT - Service TaxBusiness Auxiliary Service - respondents as distributors were receiving 1% volume discount on the total turnover - liability of service tax - Held that:- The important takeaway from the discussions on the differing nature of assessable value, one for the purpose of levy of Central Excise duty and the other for levy of service tax, is that they are two different and distinct entities. This indeed has to be so, since the purpose of levy of central excise duty is to levy tax on production or manufacture of excisable goods in India whereas service tax is a levy on service, which by its very intrinsic nature cannot then be an activity amounting to “manufacture” and subject to Central Excise levy. A value or consideration undisputedly forming part of assessable value for purposes of levy of central excise duty cannot then be also considered as part of the value of taxable service for levy of service tax. This is in keeping with the fundamental principle that the same activity cannot be considered as manufacture and subjected to excise levy and at the same time considered to be a service and subjected to service tax. In fact, the process amounting to “manufacture” is kept specifically out of the scope of Section 65 (19) of Finance Act, 1994 which prescribes service tax liability on processing of goods not amounting to manufacture. It has been consistently laid down by the Tribunal, in a plethora of decisions, that consideration which is subject to payment of excise duty is not liable for payment of service tax liability. No suppression of facts - Held that:- There does not appear to be any dispute or allegation that the respondents were not filing the prescribed statutory returns with the department - in the process of auditing, all the transactions were duly and properly audited by the Department; that such neither any attempt was made to conceal the facts nor to hide any information and the respondent had acted diligently in accordance with the provisions of law - there is no suppression of any information or facts. The Commissioner has correctly applied the law after appreciating the facts of the case - appeal dismissed.
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