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TMI Blog2019 (12) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... owing issues: Issue-1 Short-payment of service tax as per reconciliation of ST-3 returns and with income shown in accounts and interest thereon; Issue-II Short-payment of service tax on proceeds of Modem being part of taxable services along with interest thereon; Issue-III Wrong availment of service tax credit on rent-a-cab services along with interest thereon; Issue-IV Wrong availment of service tax credit on invoices on which service tax registration number/STC of service provider are not mentioned along with interest thereon; Issue-V Non/short payment of service tax on telephone service provided to employees; Issue-VI Non-reversal of Cenvat Credit under Rule 6(3) of Cenvat Credit Rules, 2004. 3. Accordingly, the recovery of service tax amounting to Rs. 61,63,375/- towards the telephone services liability was proposed, Cenvat credit amounting to Rs. 1,20,37,414/- was proposed to be disallowed and to be recovered from the appellant alleging the same to have been wrongly availed. The interest at the appropriate rate and the proportionate penalties were also proposed. The entire proposal was confirmed vide the order under challenge. Being aggrieved, the appellant is bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order. Since the document is in the form of calculation chart, it would be appropriate that this issue be remanded back to the adjudicating authority below for re-verification of the impugned ST-3 returns and to conclude as to whether the calculation as submitted by the appellant, at this stage of appeal is actually in accordance of the record and as to whether there is already an excess payment of service tax by the appellant as is mentioned, which has not been set off against the impugned demand. Issue-II Short-payment of service tax on proceeds of Modem being part of taxable services along with interest thereon: 7. On this issue, it is submitted on behalf of the appellant that the appellants purchased Modem for providing the telecommunication services. These Modems were purchased though without discharging any VAT liability but it was given to the customers of the appellant without taking any charge for the same. Resultantly, once no amount has been charged question of discharging the service tax liability doesn't at all arises. However, as far as the non-payment of VAT is concerned, the same was not the jurisdiction of service Tax Commissionerate. However, the Charter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with interest thereon; 9. On this issue, it is submitted on behalf of the appellant that invoices were complete and had all particulars mentioned thereupon as are required in terms of Rule 9 of Cenvat Credit Rules except for the PAN based registration numbers. It is impressed upon that the said registration numbers with respect to all service providers were duly provided to the Department at the time of audit itself. All those details have miserably been ignored by the Department. In such circumstances, the absence of registration number on the invoice is a mere procedural lapse, if any, part of the appellant, the substantial benefit is that of availment of Cenvat credit cannot be denied on the said scope. In case of IBS Software Services Pvt. Ltd. Vs. Commissioner of Central Excise, Customs & Service Tax, Kerala - 2017 (7) TMI 898-CESTAT-Bangalore is relied upon by the Chartered Accountant for the appellant. It is submitted that wrong availment of credit is otherwise not the case of the Department. The demand on account of this issue is accordingly, prayed to be set aside. Per contra, learned Departmental Representative has submitted that Section 9 of CCR is mandatory prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppropriate calculation as far as the amount on account of M/s L.K. Enterprises is concerned so as to be recovered after deducting the same from total demand as was confirmed by the adjudicating authority below but now stands dropped except for such amount as is directed to be calculated by the authority below. Issue-V Non/short payment of service tax on telephone service provided to employees: 10. It is submitted on behalf of the appellant that telephone services are provided to the employees of Appellant free of cost. appellant is not charging any cost from the said employees against providing the said services. It is also impressed upon that services are provided to the employees to have better efficiency and better discharge of services. Accordingly, providing telephone services to the employees without any charge is not actually a service by the appellant to anyone else was their own employees. Demand is accordingly, prayed to be set aside. Though, the ld. DR has objected the submissions on behalf of the appellant but, we are of the opinion that telephone service provided to the employees cannot be held to be a service against some consideration which is not in cash but any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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