TMI Blog2019 (5) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... y under Section 76 ibid is set aside - the penalty under Section 78 ibid will be commensurate with the final tax liability that may be arrived at by the adjudicating authority in the de novo proceedings ordered. However, the benefit of option of paying 25% of the penalty as per the provisions in force at the relevant time should be extended to the appellants. Penalty u/s 77 upheld. Appeal allowed in part and part matter on remand. - Application No.ST/Misc[CT]/41604/2017, Appeal No. ST/411/2012 - Final Order No. 40508/2019 - Dated:- 7-2-2019 - Shri Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Judicial) Shri M. Masilamani, Consultant For the Appellant Shri B. Balamurugan, AC (AR) For the Respondent ORDER Per Madhu Mohan Damodhar The MA filed by department for change of cause title consequent to the introduction of GST and the resultant change in the jurisdiction, is allowed. 2. The facts of the case are that appellants are engaged in erection commissioning and installation services. Pursuant to audit, it was noticed that appellant apparently re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 33% works out to ₹ 3,41,44,620/- and on this value Service Tax payable works out to ₹ 42,78,979/-. As they have paid from February 2008 to March 2009 a total sum of ₹ 27,74,558/- and if this amount is detected from ₹ 42,78,979/- balance duty payable works out to ₹ 15,04,421/- which is fully time barred and not payable as per their letter dated 7.3.2012 filed to the Commissioner on 8.3.2012. (iii) The allegation in para 6 (ii) of SCN at page 4 that they have failed to take up registration from October itself is not correct as they were only Sub-Contractors and not liable to pay Service Tax upto 23.8.2007 as explained in foregoing paragraph. (iv) The allegation in para 6 (iii) of SCN at page 4 that they have failed to file the periodical ST-3 return is not sustainable as they have already filed ST-3 returns periodically as mentioned in ground No.(ii) above (v) The allegation in para 7 of SCN at page 4 that we have not declared the income to the department and suppressed the facts is not sustainable because they have reflected all our income in the balance sheet periodically and hence the question of suppre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deducting the 67% value as Abatement, the duty payable was ₹ 42,78,979/- Duty paid during Feb 2008 to March 2009 ₹ 27,74,558/- Balance duty payable ₹ 15,04,421/- (Time barred) 3.3 The audit was conducted in March 2010 whereas the SCN was issued only on 20.04.2010. It was also pointed out that the Audit group has said they have taken figures for arriving at demand from loss and profit account / balance sheet of M/s. Someshwar Fabricators, and therefore the question of suppression does not arise in this case and they rely upon the following judgments: (i) SAURIN INVESTMENTS (P) Ltd Vs Commissioner of Service Tax Ahmedabad - 2009 (16) S.T.R. 446 (Tri. Ahmd) wherein it was held ST-3 regularly filed - suppression or misstatement not attributable - demand hit by time barred section 73 of Finance Act, 1994. (ii) ADITYA COLLEGE OF COMPETITIVE EXAM Vs C.C.E., Vishakapatnam - 2009 (16) S.T.R. 154 (Tri. - Bang) where in it was held that SCN issued based on audit objection - larger period not invokable - demand hit by time bar-section 73 of Finance Act, 1994. (iii) ACE REFRAC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax. (c) URVI CONSTRUCTION Vs Commissioner of Service Tax Ahmedabad - 2010 (17) S.T.R. (Tri. Ahmd) wherein it was held that sub contractors are not liable to pay Service Tax upto 23.8.2007. 3.5 Ld. Consultant further submits that if given an opportunity, they would produce all the necessary evidences and proof in support of their contentions regarding services provided to SEZ and claim for abatement before the adjudicating authority. 4. On the other hand, Ld. A.R Shri B. Balamurugan opposes the appeal. He submits that the appellants had not disclosed the fact of rendering the taxable service or the receipt of value for rendering such service to the department. All these transactions would not have come to light but for the audit of records of the assessee, hence it is a clear case of suppression warranting invocation of extended time limit. Appellants had been registered with the department only during the February 2008. With regard to claim of appellant that part of the amount relates to services provided for SEZ project for which service tax is exempted, Ld. A.R drew our attention to para 19 of the impugned order where the adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain determining the net tax liability that would be required to be paid up by the appellant in such de novo proceedings. The adjudicating authority should also take note of the averments made by the appellants before this Tribunal as recorded in paras 3.1 to 3.4 supra. Sufficient opportunity should be extended to the appellants to present their case, including submission of additional documents in support of their contentions. 7. Coming to the appellant's plea of limitation, we do not find any infirmity with the analysis made by the adjudicating authority in para 21 of the impugned order. We also note that the SCN has been issued on 20.04.2010 quite proximate to the conduct of audit. It is only due to audit, that the apparent non-payment of the disputed tax liability has surfaced. We therefore hold that the invocation of extended period for limitation is fully justified in the matter. However, coming to penalty, we are unable to fathom why equal penalty of ₹ 1,29,66,601/- each has been imposed not only under Section 78 ibid but also under Section 76 ibid. It is well settled law that penalty cannot be imposed under both these sections. We therefore set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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