9911796707
TMI Blog2011 (5) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... of services rendered by the appellant. So they conducted some investigations including a search at the premises of the appellant. Based on evidences gathered a SCN was issued to the appellant which was adjudicated vide order dated 6-3-07. The operative part of the order is reproduced below :- "1. I confirm the demand of Service Tax amounting to Rs. 13,23,058.34 and Education Cess of Rs. 13,386,06, total amounting to Rs. 13,36,444/- for the period from 1-4-2001 to 31-12-2005 (sic. under) sub-section (2) of Section 73 of the Finance Act, 1994 by invoking extended period of limitation. 2. I confirm the recovery of interest under Section 75 of the Act for the confirmed demand of Rs. 13,36,444/-. 3. Under Section 76 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter by his order dated 18-9-2007. The operative part of the order is re-produced below :- "The appellant have submitted certificates dated 18-6-2007 and 3-7-2007 issued by Rampaul & Associates, Chartered Accountants, # 189, Sector 40-A, Chandigarh who have certified that an amount of Rs. 6,63,048/- as detailed above has been deposited as service tax by M/s. Arpit Advertising Chandigarh and by others on behalf of M/s. Arpit Advertising Chandigarh and that the information has been compiled from the books and records as produced before them and found to be correct. In the light of the above certificates issued by the Chartered Accountant I accept that the appellant have already discharged their service tax liability of Rs. 6,63,048/- and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate issued by the Chartered Accountant without verifying the facts. This certificate (enclosed as Annexure "A") is ab initio void as the figures in column 3 which relates to outstanding amount pending recovery due to legal cases pending in the Courts is the gross amount inclusive of Service Tax and not Commission which actually comes to Rs. 1,07,406/-. Whereas, the fact is that Chartered Accountant while calculating the net taxable amounts has wrongly subtracted Rs. 7,17,157.80 (instead of Commission of Rs. 1,07,406/-). This has resulted in misleading the department by distortion of the figures. Commissioner (Appeals) has been misled while adjudging the case; (ii) Commissioner (Appeals) has committed an error of judgment by accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dences. In this case the gravity of need of verification is further highlighted; (v) Commissioner (Appeals) has again committed an error of judgment by adjudging that party was not having intention to evade. It is explicit from the facts and circumstances of the case that party was suppressing taxable value by resorting to colourful devices like "Barter Agreement" with M/s. Kinetic Engg., Pune, Commissioner (Appeals) has completely ignored this fact." 7. The above background does not bring out the case quite clearly. This lack of clarity persists through the SCN, Order-in-Original, Order-in-Appeal, Order-in-Review and Appeal Memorandum. To be specific, clarity is lacking on the following points,- (i) &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment in case of failure of supplies from M/s. Kinetic Engg. Pune. As per the bills resumed, during the period 8-10-2005 to 31-12-2005, the noticee had raised Bills S. No. 301 to 500 and 602 to 775 against M/s. Kinetic Engg. Pune for total amount of Rs. 46,60,731/- for cash payment and for total amount of Rs. 46,60,731/- for payment as Barter. The notice had recovered an amount of Rs. 1,44,499/- as service tax from M/s. Kinetic Engg. Pune on the bills raised for cash payment. To corroborate further M/s. Kinetic Engg. Pune were requested to supply copy of the ledger account in respect of the notice. M/s. Kinetic Engg. Pune have supplied copy of the ledger account in respect of the notice for the period 1-10-2005 to 1-12-2005 vide their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service. There is no willingness on the part of the Commissioner (Appeals) or the Department to quantify the extent of undervaluation or under declaration. Commissioner (Appeals) showed the willingness to accept the figures quoted by the Chartered Accountant. We consider this a better approach than just asserting that the Commissioner (Appeals) and the Chartered Accountant are wrong. 12. When the matter was first heard by this Tribunal on 17-12-2010, the Tribunal vide its Misc. Order No. ST/134/10, dated 15-12-2010 directed that the adjudicating authority should "call for the records of the Respondent issuing one month's notice and examine the veracity of Chartered Accountant Certificate with reference to the accounting records and report ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
