TMI Blog2014 (2) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... GEMENT 1 The appellant was engaged in the business of providing man power supply service to M/s.Tractor and Farm Equipments Ltd. (TAFE), Kalladipatti, near Madurai. They did not pay appropriate service tax for the period 16-06-05 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 on 12-08-08. 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 because appellant did not pay it immediately at the time of receiving consideration for service, for the reason that TAFE had not paid service tax amount to the appellant. Later the appellant remitted the service tax amount of Rs.16,57,515/- and interest of Rs.4,75,915/- in May 2009. Subsequently, a Show Cause Notice dt. 24.9.2010 covering both the periods i.e. the period for which the appellant was not registered and not paying tax in time as also for the period for which the appellant was registered and was paying service tax regularly. On adjudication, a demand of Rs.17,2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . These amounts were reported in IT return of 2008-09 but received only on 02-05-09. The other amount of Rs. 30766 was received only on 03-06-09. He submits that these amounts weren included in the ST-3 return of Apr 09 to Sep 09 and appropriate service tax paid. So he submits that there is no further amount due. 5. 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 vide letter No. IV/16/174/2011-Review dated 30-01-2014 of the Joint Commissioner (Review), Madurai, as under:- Please refer to the Joint Commissioner (A.R)'s letter dated 11/12/2013 on the above subject. 2. The verification report in respect of appeal filed by S/Shri P. Govindaraj and Shri G.Balakrishnan have already been submitted bythe Assistant Commissioner (Review) on 24/01/2014 26/01/2014. The verification report in respect of Appeal filed Shri J.I. Jesudasan as reported by the jurisdictional Deputy Commissioner is furnished hereunder A. The assessee J.I. Jesudasan had submitted their bank statement for the months of April May 2009 from which it could not be establishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice recipient showing credit taken after making payment to service provider should have been looked for if Revenue had such reservation in admitting the submissions made by the appellant. There is no such evidence produced by Revenue for disbelieving the submission by the appellant. Further is no effort was made to verify the fact that they had included the amount in ST-3 return for April 09 to Sep 09. Further the case of another appellant by name Govindarajan in Appeal No.ST/40008/2013on similar facts was also heard simultaneously. In that case TDS TRACES from Income Tax web-site was produced. The heading for column 7 in such statement read Total Amount Paid/Credited . It was not Total Amount Paid as Revenue was reading. The jurisdictional officers in that case also did not accept the claim that money for certain bills were realized only in the next financial year. All these facts show how hollow this case made out by Revenue for the differential tax demand forRs.70,251/- is. 7. The Ld. AR further makes the following submissions:- (i) He submits that these facts were not raised during adjudication proceedings or during proceedings before Commissioner (Appeals). He further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest before issue of show cause notice and department ought not have issued SCN in view of provisions in section 73 (3) of Finance Act, 1994. Show cause notice has been issued because they clubbed the period of 2008-09 with previous period and the department compared the figures mentioned in their IT return and the department came to a conclusion that some extra amount was collected by appellant. 10. I have considered submissions on both sides. I find that the dispute in this appeal is in the matter of service tax liability to the extent of Rs.70,251/- only. 11. There is an issue of difference in service tax amount demanded due to the fact that rate of tax was @ 10.3% during March 2009 whereas the show cause notice took into account the rate of duty @ 12.36% for the said period. The verification report is silent on such obvious discrepancy in the adjudication order. 12. The verification report is written in a manner to avoid taking any responsibility for verification and to burden this small assessee with more and more visits to excise office for satisfying the excise officers. 13. The demand by Revenue is based on Income Tax return filed by the appellant which is prepare ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
