TMI Blog2017 (6) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions - demand sustainable. Extended period of limitation - Held that: - receipt of amount has not been reflected fully in the statutory returns as is evident from the narration recorded in the show cause notice - extended period invocable. Penalties - Held that: - penalties under both sections cannot be imposed. W.e.f. 10.05.2008 as a proviso has been added in Section 78 of the FA, 1994 to state that if penalty is payable under this Section, the provisions of Section 76 shall not apply for the period 10.05.2008 to 31.03.2010, penalty u/s 76 is not tenable and the same is set aside. Appeal dismissed - decided partly in favor of appellant, as regards setting aside of penalty imposed u/s 76. - Service Tax Appeal No.53322/2014( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for the appellant contested the impugned order, mainly on the following grounds:- (a) the demand made under show cause notice dated 15.10.2010 is substantially barred by limitation as the show cause notice itself admits that the ST-3 returns regularly filed by the appellant showed the receipt of security deposit in advance. As such, there is no suppression of facts with intend to evade payment of service tax. (b) These security deposits sooner or later get appropriated towards the value of taxable service. Hence, the case against the appellant could, at worst, be considered as delay in payment of service tax, for which only interest liability will arise. (c) the appellant paid higher amount of tax than the amount of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel also submitted that the Original Authority did not consider the business practice in correct perspective. Refunding of security deposit and then receiving the invoice value separately from customers is cumbersome process. It was argued that setting off dues against the deposit is a well established accounting procedure. From the facts recorded by the Original Authority and the submissions made by the appellants, it is very clear that the appellants are receiving consideration in advance, in whatever name it is called and such considerations are squarely covered by the provisions of Section 67(3) of the Finance Act, 1994, which states that, the gross amount charged for taxable service, which include any amount received towards the ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the jurisdictional authorities. Other than this, we do not find any merit in the submissions made by the appellant. 6. The case laws relied upon by the appellant will not assist them in their defence. In Thermax Instrumentation P. Ltd. - 2016 (42) STR 19 (T-Mum) , the Tribunal was examining the tax liability of unadjusted advance. Similarly in SMS Infrastructure Ltd. - 2017(47) STR 17 (T-M) , the Tribunal was discussing the double taxation in case of advances as well as adjusted dues both are subjected to tax. In the present case, we are not dealing with the possibility of double taxation and also the appellant's right to adjust the advance against bill dues from their clients. Apparently, when the service tax is paid o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did mention the deposits in the ST-3, documentary support to that effect has not been submitted. 8. Further, we note that if the appellants were duly discharging service tax on all the advances, by adjustment at the time of issue of bills, on completion of service, the question of short payment of service tax for long periods covered by show cause notices would not have come. We are not able to understand the submissions of the appellant that the case can only be considered as delayed payment of service tax. No reconciliation of such nature has been submitted before us to prove that all the advances received have been adjusted against the bills raised, after provision of service to various clients. In the absence of such assertion with s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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