TMI Blog2015 (8) TMI 1432X X X X Extracts X X X X X X X X Extracts X X X X ..... zed by the Settlement Commission Benches of Mumbai and Delhi in their Final Orders dated 25-8-2014 and 22-7-2014, respectively, and since the present application, relating to the Pune Unit, has been filed on 19-1-2015, the same is clearly not admissible under Section 32-O(1)(i) of the Central Excise Act, 1944, as made applicable to Service Tax. The Settlement application filed by the applicant, M/s. CLR Services Pvt. Ltd. in respect of their Pune Unit is rejected as inadmissible under Section 32-O(1)(i) of the Central Excise Act, 1944 as made applicable to Service Tax by virtue of Section 83 of the Finance Act, 1994. - Settlement Application No.12/ST/KNA/2015-SC(MB)SA(ST)21/2015 - Order No.179/FINAL ORDER/ST/KNA/2015 - Dated:- 31-8-2015 - S/Shri A.K. Prasad, Vice-Chairman And J. Chaturvedi, Vice-Chairman Shri Arun Jain, Advocate, for the Assessee. Shri Kailash Aherwar, S.I.O., for the Department. ORDER This order disposes of the application filed by M/s. CLR Service Pvt. Ltd. (hereinafter referred to as the applicant ) under Section 32E of the Central Excise Act, 1944, made applicable to Service Tax vide Section 83 of the Finance Act, 1994, for settlement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, Manirka, South West Delhi-110067; (4) 401, Shivai Plaza, saubaug Road, near Ravi Vihar Restaurant, Marol Naka, Makwana Road, Andheri East, Mumbai-400059; and (5) No.1-99/14, Above State Bank of Patiala, next to Hyderabad House, Madhapur, Hyderabad-500 081. The various relevant records were seized, viz. Copies of Agreement between M/s. CLR and their Clients, Purchase/ Work orders, copy of sales invoices/bills, balance sheets, Bank statements, S.T.-3 return, Services tax payments Challans, list of customers, etc. from all locations under Panchanamas all dated 31-8-2012. 1.4 During the investigation and on scrutiny of the records/ documents seized from M/S. CLR and its all locations at Pune, Mumbai, Hyderabad, Bangalore and Delhi under Panchanamas all dated 31-8-2012 and admittal statements of Shri Gautam R. Pathak and Shri. Gaurav R. Pathak both directors of the company it came to notice that M/s. CLR Services Pvt. Ltd, is a Pune based company with branches at Mumbai, Bangalore, Delhi and Hyderabad. This company is in the business of Commercial cleaning services, Operations and Maintenance, office support services and contract staffing services. These services were provided to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he consideration received on that basis. The other model of service provision adopted was on the basis of per square feet provided by M/s. CLR to premises of IPL match, M/s. Uhde House, M/s. Paper Products, etc. These activities of provision of services come under 'Cleaning Activity Service'. 1.7 From the investigations conducted, it appears that M/s. CLR India had provided Services to their customers, raised Service bills on them showing the value of the taxable service rendered and the amount of service tax payable against the same. They had charged and collected the amount along with Service Tax Cess butfailed to deposit it on Government Exchequer. 1.8 On scrutiny of the Service Tax Returns (S.T.- 3) filed by M/s. CLR for the period 2008-09 to 2011-12, it observed that they had filed the return for the services provided by them in respect of M/s. CLP. Services Pvt. Ltd. Pune branch only. The Service Tax Returns for their other registered locations at Mumbai, Bangalore and Delhi had not been filed by them. The taxable value declared in the said S.T.-3 returns was also suppressed and was understated than the actual taxable value billed and recovered from the client ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yable Service tax paid before investigation (challan) Service tax paid before investigation (input service credit) Service tax liability (including ed. Cess s.H. Ed Cess) (1) (2) (3) (4) (5) (5) 2008-09 10,69,01,642.00 1,17,59,561.00 20,95,568.00 - 96,63,993.19 2009-10 16,92,00,053.00 1,81,28,143.00 52,98,826.00 - 1,28,29,317.00 2010-11 24,09,53,224.00 2,40,91,892.00 76,44,495.00 3,49,225.00 1,60,98,141.99 2011-12 11,14,04,105.00 1,04,03,103.00 59,83,145.00 2,85,941.00 41,34,017.00 2012-13 (upto December 12) 6,75,71,753.00 74,33,135.00 65,48,513.00 - 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant appears to have suppressed the facts of providing services to their clients and collection of service tax from them. It also appears that the applicant have willfully suppressed the facts of non-payment of service tax despite having collected the same from their clients, which they were duty bound to deposit with the Central Government. Therefore, proviso to sub-section (1) of Section 73 of the Finance Act, 1994, which provides for issuance of SCN within the relevant date appears invokable in this case. 1.16 It therefore appears that the applicant have contravened the following provisions of Chapter V of the Finance Act, 1994 and the Service Tax inasmuch as they have failed :- (i) To charge and collect the service tax at the appropriate rate on the taxable value of the 'service' rendered to SEZ during the period from 3-3-2009 to 19-6-2009, as prescribed under Section 66 of the said Act and Rule 6 of the said Rules; (ii) To pay service tax at the appropriate rate on the taxable value of the service' rendered to their clients for the period from 1-4-2008 to 31-12-2012, as prescribed under Section 68 read with Section 66 of the said Act and Rule 6 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 5 and 7 of the Service Tax Rules, 1994. Disclosure of the applicant 2.1 In their application filed before the Settlement Commission, the applicant submits that due to severe financial crisis they could not pay the service tax collected by them from their clients. It is submitted that the applicant has incurred substantial losses and its net worth has been eroded. 2.2 The applicant submits that non-payment of service tax was purely due to financial crises faced by the applicant. 2.3 It is submitted that the applicant had no intention to evade payment of service tax and delay in payment of service tax is solely due to adverse market condition and financial crises faced by the applicant. 2.4 It is submitted that the records clearly indicates that the delay in payment of service tax is solely on account of financial constraints and huge losses suffered by the applicant. 2.5 It is submitted that delay in payment of service tax is not due to fraud, suppression or willful mis-statement. 2.6 Having regard to the submissions made herein and during the investigation, it is evident that delay in payment of service tax is beyond the control of the applicant and due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he alleged non-payment is bona fide. There was reasonable cause for alleged failure to pay the service tax. The applicant may be granted complete waiver from the penalties proposed under Sections 76, 77 and of the Finance Act, 1994 in terms of Section 80 of the Finance Act, 1994. 2.14 The applicant in true spirit of settlement of the entire case is voluntarily filing the instant Application for settlement, at once, of all the issues raised in the SCN. 2.15 The applicant craves leave to add, alter or amend the above averments in case the need arises and undertake to extend full co-operation in settlement proceedings. 2.16 The Applicant, therefore, prays :- (i) That the applicant's case may please be admitted for settlement. (ii) That the applicant's case may please be settled. (iii) For grant of immunity from imposition of penalty on the applicant under the Finance Act, 1994. (iv) That the proposed penalty under Sections 76, 77 and 78 of the Act may be waived in terms of Section 80 of the Act. (v) For grant of immunity from prosecution under the Finance Act, 1994 and/or any other law for the time being in force, and (vi) For such order a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest, M/s. CLR have not submitted the working of interest calculation with the application and had deposited only an amount of ₹ 20,00,000/- as interest. On examining the due date of Service Tax liability of ₹ 4,36,10,091/- and the actual payment date, it appears that the interest amount of ₹ 20,00,000/- paid by M/s. CLR is far less than the actual interest liability due on the applicant. Therefore it is requested to the Settlement Commission, that direction may be given to the applicant to file the interest calculation sheet and pay accordingly. Thus, it appears that the application before the Settlement Commission becomes irrelevant under the above facts of the present case. 4.5 The applicant have prayed for immunity from penalty, prosecution etc. However, it is pertinent to note that the applicant have unambiguously admitted in the application that they had charged the service tax amount and was also collected at appropriate rate from their clients; however they had not deposited the same to the Government exchequer. Though, they have filed the S.T.-3 return for the period 2008-09 to 2011-12 with jurisdictional service tax authorities, the value declared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, 2008 to December, 2012. This has been paid in full by the applicant along with interest of ₹ 1,08,00,000/-. An amount of ₹ 88 lacs was paid over a period of from February to August, 2015, details of which has been provided in their letter dated 24-8-2015. (ii) ₹ 2,47,513/- relating to the demand in respect of service provided to SEZ units during the period 3 rd March 2009 to 19 th June, 2009. During this period exemption was available to services provided within the SEZ by way of refund. In other words, service tax had to be paid initially and refund of the said amount to be claimed. In this connection the Id. Advocate relied on the decision of CESTAT, Allahabad in the case of M/s. Reliance Ports Terminals Ltd. v Commissioner of Central, Excise Service Tax, Rajkot reported in [2013- TIOL-CESTAT-AHM= 2015 (40) S.T.R. 200 (Tri)] wherein it has been held that even during the relevant period no service tax was payable for services provided within SEZ. 6.3 To a query from the Bench regarding status of the case booked against the other 4 units, the Id. Advocate submitted that they have already filed settlement application for the Delhi unit before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Unit. 7.5 Further, the present application has already been allowed to be proceeded with vide Order dated 13-2-2015. Findings 8.1 The Bench has examined the facts of the case, the submissions made by the applicants in their application as well as at the time of personal hearing as also the submissions of the Revenue. 8.2 This is a case where the applicants have been alleged to have evaded Service Tax on a number of services provided by them through their Units located all over India. Their units are located in Pune, Bangalore, Delhi and Mumbai and Hyderabad. 8.3 Before proceeding with the merits of the case, it is necessary to first to decide as to whether the present application itself is admissible or not. It is observed that against Sl. No.11 of their application in form S.C.(S.T.-1), which requires the details of any other application filed before any Bench of the Settlement Commission, the applicants have indicated a categorical 'NO'. Only at the time of personal hearing on 25-8-2015 when they were asked about the progress in the cases booked for the other Units, it was revealed by them for the first time that in respect of the Mumbai Unit and Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate to proceedings under any other SCN. When 4 SCNs have been issued to the four Units of the applicant, they will all be considered as different matters . Any other interpretation of the word 'matter would lead to anomalous situations. Who would decide whether two SCNs relate to the same matter or not? Would introduction of any new fact in a particular SCN make it a different 'matter'? Can 2 SCNs relating to two different periods relate to the same matter'? etc. 8.6 The Settlement Commission is empowered to decide a 'case' as per Section 32E read with the definition of a case as per Section 31(c) of the Central Excise Act, 1944. Two separate applications filed by an applicant are to be dealt with separately and independently. Each Show Cause Notice is a case'. Two SCNs, and accordingly two applications, cannot be combined together to consider them as a single 'case'. Similarly, two applications filed before the Settlement Commission would be different matters' and cannot be considered as the same matter. 8.7 This aspect is best understood by noting the various amendments made to Section 32-O over a period of time. With effect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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