TMI Blog2020 (2) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... erein was rejected. The impugned order dated 13-12-2018 is held to be unsustainable in the eye of law and the same is accordingly, set aside - Appeal allowed - decided in favor of appellant. Revenue permitted to issue fresh SCN - Such demand, if any, raised by the appellant, shall clearly specify and exclude the non-taxable services from the gross receipt and also indicate the period as well as the particulars of the SSA to which the same relates to. - C. Ex. App. 12/2019 - - - Dated:- 12-2-2020 - HONOURABLE MR. JUSTICE SUMAN SHYAM And HONOURABLE MR. JUSTICE HITESH KUMAR SARMA FOR THE PETITIONER : MR. S C KEYAL FOR THE RESPONDENT : MR. V K CHOPRA JUDGMENT Suman Shyam, J Heard Mr. S.C. Keyal, learned ASGI appearing for the appellant. We have also heard Mr. V.K. Chopra, learned counsel appearing for the respondent. 2. The judgment and order dated 13-12-2018 passed by the learned Customs, Excise Service Tax Appellate Tribunal (CESTAT), Eastern Zonal Bench, Kolkata in ST Appeal No. 198/2008 and ST Appeal No. 210/2008 have been assailed by the appellant in this appeal filed under Section 35G of the Central Excise Act, 1945. 3. At the very out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced by the Commissioner to ₹ 2,77,65,000/- for the reasons recorded in the order. But at the same time, heavy penalty of equal amount was also imposed upon the respondent. 6. The operative part of the order dated 28-08-2008 is reproduced herein below for ready reference:- ORDER 6.1 Having regards to above discussion and findings, I order confirmation of the demand and recovery of service tax of ₹ 2,77,65,000.00 (Rupees two crore seventy seven lakh sixty five thousand only) from M/s BSNL, Assam Circle, Guwahati in terms of section 73(1)(a) of the Finance Act, 1994. 6.2 I order recovery of interest at the appropriate rate in terms of section 75 of the Finance Act, 1994. 6.3 I impose penalty of ₹ 2,77,65,000/- (Rupees two crore seventy seven lakh sixty five thousand only) on M/s BSNL, Assam Circle, Guwahati in terms of section 78 of the Finance Act, 1994 7. Aggrieved by the order dated 28-08-2008, the respondent had preferred ST Appeal No. 198/2008 before the CESTAT. Simultaneously, the appellant had also preferred ST Appeal No. 210/2008 assailing the order dated 28-08-2008 to the extent of reduction of the original demand raised in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the assessment of different SSAs and by juggling the figures, the appellant had raised an erroneous demand in the Show Cause notice dated 28-03-2003 by including such items in the gross receipt component which were exempted from taxable services. The said error was rectified by the learned Tribunal by carrying out reconciliation of the account whereby, it was found that no further amount was payable by the respondent. Under the circumstances, submits Mr. Chopra, no interference is called for with the impugned judgment and order dated 13-12-2018. 12. We have gone through the materials available on record and have also bestowed our anxious consideration on the submission made by the learned counsel for both the parties. 13. As noticed above, the Central Excise Department had issued Show Cause notice dated 28-03-2003 raising a demand of ₹ 3,47,49,000/- on account of default allegedly made by as many as four different SSAs viz. M/s Guwahati SSA, M/s Jorhat SSA, M/s Silchar SSA and M/s Nagaon SSA. From a perusal of the Show Cause notice, it is evident that each of the four SSAs were maintaining separate accounts of gross receipts and the demand of the Central Excise D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had carried out re-conciliation of the account of the respondent and determined the amount of service tax actually payable by it. Thereafter, the CESTAT came to a conclusion that although there is short payment of service tax to the extent of ₹ 52.88 Lakh yet, the BSNL had voluntarily made excess payment of service tax to the extent of ₹ 74.20 Lakh. As such, no more service tax was payable. The operative part of the order dated 13-12-2018 is reproduced herein below for ready reference: 12. Out of the total gross receipts, the amounts, which are not liable to service tax are to be excluded. After the said deduction, we note that BSNL, during relevant time, had short paid service tax to the extent of about ₹ 52.88 lakhs. However, it is also seen that BSNL has sou-motu made payment of such differential service tax of ₹ 74.20 lakhs. As such, no more service tax is required to be paid. 13. Revenue has filed the present appeal challenging the amount of service tax dropped by the adjudicating authority. On the basis of re-calculation of service tax dues and submission of a Certificate from the independent Chartered Accountant, we are led to the conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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