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2016 (8) TMI 448 - CESTAT ALLAHABAD

2016 (8) TMI 448 - CESTAT ALLAHABAD - TMI - Levy of penalty - valuation - extended period of limitation - taxable services - claim of cum tax benefit - deduction of Bonus and PF contribution - Held that:- the issue of valuation in Service Tax matters was issue of interpretation of statute under litigation. - Therefore levy of penalty set aside. - Subsequent demand - Held that:- the show cause notice dated 08.10.12 was issued on the same set of facts for the period from 2007-08 to 2011-12. Th .....

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d K.S. Gupta, Consultant for assessee Shri Rajev Ranjan, Joint Commissioner (AR), for Revenue ORDER These are two miscellaneous applications and three Appeals. 2. Miscellaneous application No. ST/Misc/51242/14 was filed in appeal No. ST/59 670/13 (DB), requesting for early hearing of the Appeal and miscellaneous application No. ST/Misc/51359/15 was filed in the same appeal, requesting for clubbing. Appeal No. ST/59670/13 with appeal No. ST/50752/15 and appeal No. ST/51100/15, and stay applicatio .....

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re involving same issue for the same appellant for the same service provided having some common period in the show cause notices therefore clubbing of appeal stated in para No.2 was allowed to be clubbed. 5. Stay application No. ST/Stay/50808/15 in appeal No. ST/51100/15 (DB) was filed by the Revenue, requesting to stay the operation of impugned Order-in-Appeal No.74/ST/ ALLD/2014 dated 04/12/14. Since the concern appeal was taken up for hearing, the said stay application become in-fructuous and .....

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period from June, 2005 to March, 2010 VSE provided taxable Services to M/s Hindalco Industries Ltd. VSE was issued with a show cause notice dated 06.10.2010 demanding Service Tax of ₹ 5,87,899/- on amount of Bonus and PF contribution of ₹ 50,79,855/- received by VSE from M/s Hindalco Industries Ltd. during the period from June, 2005 to March, 2010 for deploying manpower. The said show cause notice was adjudicated through Order-in-Original dated 11/08/2011 wherein the said demand of .....

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o M/s Hindalco Industries Ltd. under Section 87 (b) of the Finance Act, 1994, Assistant Commissioner requested service receiver to pay to the exchequer ₹ 11,80,798/-which includes Service Tax demand and penalty imposed out of the amount due to be paid to VSE. M/s Hindalco Industries Ltd. Credited ₹ 12,24,891/- to exchequer through chalan dated 22.07.2013 by deducting from the amount payable to VSE. 7. Heard the Learned Advocate, he has contended that if the total amount received of & .....

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provisions under Section 66 and Section 67 of the Finance Act, 1944. Since the issue of valuation was a matter of interpretation and subjudice penalty under Section 78 of the Finance Act, may be waived. The Revenue contented that the impugned order is just and fair. 8. Appeal No. ST/50752/15 was filed by VSE against Order-in- Appeal No.74/ST/ALLD/2014 dated 04/12/14. VSE were issued with a show cause notice dated 08.10.12 alleging that during the period from 2007-08 to 2011-12 VSE received total .....

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ervice Tax of ₹ 26,93,163/- was demanded. The show cause notice was decided through Order-in-Original dated 18.03.14 through which the entire demand of Service Tax was confirmed, equal penalty was imposed and another penalty of ₹ 10,000/- was imposed. VSE preferred appeal before the Commissioner (Appeals) to decided the appeal through impugned order dated 04.12.14 wherein he has modified the said Order-in-Original dated 18.02.14 by reducing the demand for over-lapping period and set .....

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gned order may be set aside applying the Ruling of the Hon'ble Apex court in the case of Nizam Sugar Factory Vs CCE (AP) 2006 (197) E.L.T. 465 (SC). Heard both the parties, leared Advocated for VSE contended that show cause notice dated 08.10.12 is bad in Law in view of the fact that for providing Services by the same assessee to the same service receiver a demand of extended period from 2005-06 to 2009- 10 was already raised through said show cause notice dated 06.10.10. Therefore, as ruled .....

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ad has contended that appellate authority has committed a mistake by reducing the amount of tax liable to confirmed by the amount of ₹ 17,47,913/- being an amount confirmed and paid with respect to above show cause notice dated 06.10.10 and appellate authority could have reduced the figure of ₹ 26,93,163/- only by ₹ 05,87,899/- and not by ₹ 17,47,913/-. They have also contended that the appellate authority have effed in holding that there is no suppression so for as the s .....

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raised on the amount of bonus and PF contribution paid by service receiver M/s Hindalco Industries Ltd. to service provider i.e. VSE, in respect of individual manpower employed by VSE for attending to the work of M/s Hindalco Industries Ltd. The appellant VSE have requested for benefit of cum duty value. We find that they are entitled for benefit of cum duty value. Therefore, we hold that ₹ 50,79,855/-received by VSE should be treated as cum duty value and accordingly, service Tax payable .....

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cts for the period from 2007-08 to 2011-12. The facts of the case were known to the department and on the basis of facts show cause notice dated 06.10.10 was issued. Therefore, contention in the show cause notice dated 08.10.12 that there was suppression of material facts is not tenable in Law. The Hon ble Supreme Court in the above stated case of Nizam Sugar Factory held as follows. 9. Allegation of suppression of facts against the appellant cannot be sustained. When the first SCN was issu .....

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