TMI Blog2014 (2) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in para 10 (iv) earlier. So the penalty under section 78 is waived. - Appeal No.ST/40008/2013 - FINAL ORDER No.40080/2014 - Dated:- 31-1-2014 - Shri Mathew John, J. For the Appellant : Shri N. Viswanathan, Advocate For the Respondent : Shri P. Arul, Supdt. (AR) JUDGEMENT 1. The appellant was engaged in the business of providing Maintenance and Repair Servicer in the factory of M/s. Tractor and Farm Equipment Ltd. (TAFE), Kalladipatti, near Madurai. They did not pay appropriate the service tax on such service for the period 01-10-04 to 31-03-08 in time. Revenue conducted investigations with TAFE and found that TAFE was making payments to the appellant. Then, Revenue approached appellant in Nov2008 for details of service tax payment on such consideration received from TAFE. By this time, the appellant had taken out registration under service tax regime and started discharging service tax from April 2008. However, there was a dispute regarding tax liability pertaining to previous period. Appellant did not pay it immediately because TAFE had not paid service tax amount to the appellant. Later the appellant remitted this service tax amount of Rs.5,20,274/- and int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no duty liability more than what has been paid. He submits that since tax liability along with interest has been paid before issue of SCN, no penalty should have been imposed. 8. This matter had come up for hearing on earlier occasion on 18-10-13 when Revenue was directed to verify whether the facts as stated are correct. Today, Ld. AR for Revenue submits a report C. No. IV/16/206/2011-Review dated 22-01-2004 of the Asst. Commissioner (Review)reading as under:- "Please refer your letter in Appeal Nos. S/40008/2013 dt.11/12/2013 on the above subject. As requested, the detailed verification report as reported by the Assistant Commissioner, Madurai-I Division is submitted as under: Point-1 : Demand in the show cause notice, for the accounting year 2008-09 has been made based on the gross receipts figuring in the IT return: Yes, this point is correct. As per the annexure to the Show Cause Notice, Taxable value has been taken as per the Income tax return only. Point 2: The Gross receipts in the Statement of total income for the accounting year 2008-09 is as per Form 16A, which is Rs.14,85,516/- The gross receipt has been taken from the profit and loss account f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total receipt shown in the P L account is Rs.14,85,516/-. If this is taken as cum-tax value, the taxable value is Rs.13,22,104/-. However, as per the Form 26AS the amount paid by the service receiver, i.e., TAFE during the Financial year 2008-09 is Rs.14,96,190/-. If it is taken as cum-tax value, the taxable value is Rs.13,31,604/-. As Form 26AS has been taken from the Income tax Portal, it should be taken as the authenticated figure and so the taxable value should be Rs.13,31,604/- and the service tax payable thereon works out to Rs.1,64,586/- (ST-Rs.159792/-, EC Rs.3,196/- and SHEC Rs.1598/-). Against this liability the assessee has paid Rs.1,61,397/- only. Hence the differential service tax yet to be paid by the assessee works out to Rs.3189 (ST Rs.3096, EC Rs.62 and SHEC Rs.31) Point 7 The gross taxable value as per ST-3 returns for the year 2008-09 is Rs.13,05,150/- and therefore no differential service tax is payable: As discussed above in point-6, the taxable value should be Rs.13,31,604/-. As Form 26AS has been taken from the income tax portal, it should be taken as the authenticated figure and so the taxable value should be Rs.13,31,604/- and the service tax payable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid before issue of show cause notice, it was paid only after investigation was started and therefore there was suppression and hence penalties were proposed and imposed correctly. The Ld A. R. also argued that the appellant was initially taking an argument that the appellant was manufacturing tractors. 12. Ld. Counsel says that assessee is a small and individual service provider and not very conversant with the service tax laws. In this case, when the matter was pointed out by the department to TAFE, who in turn pointed out to the appellant, the tax liability was paid. There was some marginal delay because they were making efforts to get the amount from TAFE. He also submits that tax liability and interest as calculated by the Range Superintendent was paid before issue of SCN. 13. Regarding the allegation made by Ld. A. R. for Revenue that appellant misstated that he was assembling the tractors is not true. By statement dt.13-04-09 he had already accepted that he was doing Maintenance and Repair Service. He submits that he had paid service tax amount along with interest before issue of show cause notice and department ought not to have issued SCN under section 73(3). Show caus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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