TMI Blog2019 (5) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... but due to erroneous filing of ST-3 return, they failed to put the CENVAT credit in the appropriate column for which demand was raised where as duty was not payable as it was a technical error. From para 22.5 (v) as well as show-cause notice, It is found that no invoice/bill was raised against such collection from the candidates and therefore the amount shown in the balance sheet was taken by the respondent-department as the gross value. Therefore, there is no evidence on record to substantiate that the entire bill is raised by the appellant except figure mentioned in the balance sheet. Service Tax was paid by the appellant and M/s ASMACS separately on the gross amount collected and distributed between them and imposing duty liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating Authority and by the Appellate Authority. The appeal assailed the order of Commissioner (Appeals) before this forum. 3. In the memo of appeal and during the course of hearing of appeal, learned Counsel for the appellant Mr. V.M. Doiphode submitted that during the period of 2010-11 to 2014-15, the appellant paid Service Tax on value less than the amount collected from candidate after deducting the amount paid to M/s ASMACS to whom appellant forwarded the selected candidates and M/s ASMACS also had paid Service Tax which was available to the appellant as CENVAT credit, which if taken into consideration and adjusted against duty demand, no tax liability is due on the appellant. He further submitted that learned Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 vide Notification No. 06/2015-CE(NT) availment of CENVAT credit is possible within one year for which technical mistake that such CENVAT credit could have shown or taken through ST-3 returns would no more be available to the appellant. He further submitted that in the Order-in-Original, a clear finding is available that in the absence of any contract to the contrary between the candidate and assessee vis-a-vis M/s ASMACS, the service cannot be considered as continuous service, for which both the services are to be treated as two separate services and appellant is liable for such duty and Commissioner (Appeals) had rightly concurred with such findings for which interference by this Tribunal is uncalled for. 4. Heard from b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bill is raised by the appellant except figure mentioned in the balance sheet. 5. It is admitted by the adjudicating authority and found approval by the Commissioner (Appeals) that even if CENVAT credit from the amount recovered from M/s ASMACS is admissible, there is no mechanism to avail the same or to make any adjustment in the Service Tax demand on the appellant for which they had given their finding that the case laws cited by appellant in the grounds of appeal are found to be of no help to the appellant. Accepting that CENVAT credit towards input services could have been availed by the appellant, it cannot be said that preliminary scrutiny of documents and selection are different from making final engagement of manpower ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
