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2019 (6) TMI 632

appropriate at this stage to examine the chart that is contained in the second show cause notice dated 18 May 2009. The said chart is for the Financial Years 2003-04 to 2007-08. It gives the total income receipt for each of the Financial Years and the taxable value as per ST-3 returns for each of the Financial Years. It then gives the difference in the taxable values for each of the Financial Years and the short paid service tax in each Financial Year. It is no doubt true that the first show cause notice dated 17 October 2008 that was issued to the appellant is for a part of the Financial Year 2007-08, namely from April 2007 to September 2007 which period is included in the second show cause notice dated 18 May 2009, but what needs to be pointed out is that the first show cause notice is based on the total income shown by the appellant in the ST-3 return for the said period. The show cause notice alleges that even on the taxable value shown in the ST-3 return, the appellant short paid service tax. It does not challenge the correctness of the taxable value shown in the ST-3 return. Validity of second SCN - HELD THAT:- The second show cause notice, on the other hand, challenges the t .....

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tax liability on this value works out to ₹ 30,99,77,593/- but the assessee has paid total service tax ₹ 27,44,73,947/- (through Cash ₹ 26,54,50,182/- + through CENVAT ₹ 90,23,765/-). Hence, the assessee has short paid / not paid service tax amounting to ₹ 3,55,03,646/-. Therefore, it appears that the service tax amounting to ₹ 3,55,03,646/- short paid / not paid by the assessee is recoverable from them under Section 73 of the Finance Act, 1994. It also appears that the interest as applicable on this amount till the date of payment is recoverable from them under section 75 of the said Finance Act. The assessee is also liable for panel action under section 76 and 77 of the said Finance Act. Now, therefore, the assessee M/s Prasar Bharti Broadcasting Corproation of India, Doordarshan Commercial Service, Doordarshan Bhawan, Copernicus Marg, Mandi House, New Delhi-110001 is hereby called upon to show cause to the Commissioner of Service Tax, 17-B, IAEA House, I P Estate, New Delhi within 30 days of the receipt of this notice as to why:- i. The value of taxable services rendered by the assessee on which tax is required to be paid should not b assessed .....

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68508 6879219 0 92195961 5551843688 3642929679 1908914009 152713121 2004-05 6819436426 24970900 0 524044929 7368452255 5600459348 1767992907 180335277 2005-06 9316920635 24306191 0 932227821 10273454647 8725054760 1548399887 157936788 2006-07 9224440119 17018460 0 0 9241458579 7327877609 1913580970 234222311 2007-08 9891653256 13513789 430710781 0 10335877826 9155942158 1179935668 145840049 Total 40705218944 86688559 430710781 1548468711 42771086995 34452263554 8318823441 871047545 5.1 Whereas the above reconciliation receipt of incomes being taxable value as per Section 67 of the Act and Rules collectively amounting to ₹ 42,77,10,86,995/- for rendering taxable service under Section 65(15), Section 65(90a) and having paid service tax on ₹ 33,45,22,63,554/-, PBCL was liable to pay service tax amounting to ₹ 87,10,47,545/- on balance taxable value of ₹ 8,31,88,23,441/- on which service tax was evaded and short-paid, along with interest. 5.2 Whereas PBCL was informed of the foregoing vide D.O. Letter No. I-26(494)ST/APR/GRAII/234/2008 letter dated 22.04.2008 (RUD-IV), requesting them to co-operate with the service tax check compliance exercise. Agreeing, PBCL p .....

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n extended to the appellant in this case, to which it is legally entitled to. Therefore, we are of the view that the matter should go back to the original authority for a limited purpose of re-quantification of the service tax liability. Therefore, we remand the matter to the original authority for re-quantification of the actual Service Tax liability, which is payable by the appellant. 7. Since there is reasonable cause for non-payment of Service Tax within the stipulated time frame, we are of the view that the provisions of Section 80 of the Act can be invoked for non-imposition of penalties under Section 77 and 78 of the Act. Therefore, we set aside the penalty imposed in the impugned order under Section 77 and 78. 6. The Appellant also filed a reply to the Show Cause Notice dated 17 October 2018 that led to the passing of the order dated 6 August 2014 that has been assailed in this appeal. The relevant portion of the reply is reproduced below: Reference is invited to your letter No. C No. IV(16)Hqrs/Adj/PB/390/ST/08/55025 dated 17.10.2008 making Prasar Bharati accountable for payment of Short paid service tax‟ for a fractional period of six months only from April to Septe .....

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submission that since the period involved in the show cause notice dated 17 October 2008 from April 2007 to September 2007 is included in the second show cause notice dated 18 May 2009, the order dated 6 August 2011 passed by the Commissioner (Adjudication) should be set aside and appeal should be allowed. 8. Shri Vivek Pandey, learned authorised representative for the Department has, however, submitted that the issue involved in the first show cause notice is entirely different from the second show cause notice and, therefore, it is not open to the appellant to contend that the order should be set aside for this reason. 9. We have considered the submissions advanced by the learned counsel for the appellant and the learned Authorised Representative for the Department. 10. In order to appreciate the submissions, it would be appropriate at this stage to examine the chart that is contained in the second show cause notice dated 18 May 2009. The said chart is for the Financial Years 2003-04 to 2007-08. It gives the total income receipt for each of the Financial Years and the taxable value as per ST-3 returns for each of the Financial Years. It then gives the difference in the taxable v .....

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