TMI Blog2018 (6) TMI 929X X X X Extracts X X X X X X X X Extracts X X X X ..... deration received by the appellants during the period in dispute is upheld. Benefit of cum-tax computation - appellants had discharged their tax liability before the issue of notice though not the interest liability - Held that:- Service tax is an indirect tax and macroeconomic theory has it that indirect taxes are recovered from the end consumer. We have no quarrel with the theory but tax collection is required to be in accordance with law. Finance Act, 1994 does not prescribe collection from the customer; nor does it authorize the provider of the service to act as an agent of the State. Though Service Tax Rules, 1994 does prescribe that tax component be separately indicated in the invoice, tax was for the relevant period was to be comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anner for recruitment or supply of manpower, temporarily or otherwise, to any other person; in section 65 (68) of Finance Act, 1994 2. The appellants are before the Tribunal for the second time. On the former occasion, they had challenged the liability to tax in the absence of an examination of the contracts that they had entered; to enable that, the matter was remanded back to the original authority. While the original authority confirmed the recovery proposed in the notice for the period from 16th June 2005 to 31st December 2005 and imposed various penalties, the impugned ordersin- appeal no. RPS/230/NSK/2013 dated 26th July 2013, no. NSK-EXCUS-000-APP-229 and 227-13-14 dated 26th July 2013 of Commissioner of Central Excise Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived by the appellants during the period in dispute. 5. We note that the appellants had discharged their tax liability before the issue of notice though not the interest liability. It would also appear that the amounts confirmed were more than the amounts discharged by them as tax. The appellants contend that they should be accorded the benefit of cum-tax computation as they had not collected the tax from their customers. That does not sustain as an argument; if they were required to discharge their tax liability, their failure to pass on the tax burden is no reason for the exchequer to forgo the dues authorized to be collected by law. 6. Nevertheless, in some cases cum-tax benefit are mandated. Service tax is an indirect tax and ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt the contention that the activity becomes a taxable service when the compensation is in terms of number of labourers. He also placed reliance on the decision of Hon'ble High Court of Gujarat in Commissioner of Central Excise, Surat-I v. Neminath Fabrics Pvt Ltd [2010 (256) ELT 369 (Guj.)] for invoking the extended period and consequent penalty which we do not find to be relevant in this context. We also find it odd that a gap of four years lapsed between the registration obtained by the appellants and the issue of notice. There is no evidence of any suppression on the part of the appellants, which are proprietary concerns. The invoking of the extended period is not tenable. 10. For the above reasons, we set aside the penalties un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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