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TMI Blog2021 (8) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... cating authority gave the benefit of valuation rules as the contract was with material and hence, allowed abatement @60%. Further, the adjudicating authority accepted the plea in certain cases that the benefit of Notification No. 30/2012-ST dt. 20.06.2012 was available to the appellant as the appellant has provided the services to companies, but in certain cases, the benefit of the above said notification was not given to the appellant on the ground that the appellant has charged 100% amount of service tax from the service recipients. Further, the adjudicating authority has taken the amounts as per Form 26-AS or Balance Sheets whichever is higher for charging the service tax. Findings of the adjudication authority were challenged before the ld. Commissioner (Appeals) who considered certain pleas of the appellant but not considered other pleas and remanded the matter back to the adjudicating authority for denovo adjudication. Against the said order, the appellant is before me. 3.1 The ld. Counsel, Sh. Vikrant Kackria appearing on behalf of the appellant submits that the appellant is not contesting the demand of service tax of Rs. 1,19,262/- and 25% penalty amounting to Rs. 29,815/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed the benefit of Notification No. 30/2012-ST dt. 20.06.2012. He also submits that the figures of the Balance Sheets has been taken for consideration to calculate the impugned demand. He also stated that extended period of limitation is rightly invoked as the facts were not in the knowledge of the department. Only during the investigation, it came to the knowledge of the department. 5. Heard both the sides and considered the submissions. 6. After considering the facts and submissions, following issues are emerged:- (i) Whether the excess recovery of the service tax can be recovered under Section 73 of the Finance Act, 1994 or Section 73-A of the Finance Act, 1994? (ii) Which figures are to be taken for computation of demand of service tax, (a) Form 26-AS or (b) Balance Sheet? (iii) Whether extended period of limitation is invokable in the facts and circumstances of the case or not? (iv) Whether the penalty can be imposed on the appellant or not? 7.1 Issue No. (i) :- The adjudicating authority after considering the arguments advanced by the appellant and documents produced gave the abetment of 60% of the total turnover being works contract and also extended the benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unded for the subsequent period, on the person chargeable to service tax, then, service of such statement shall be deemed to be service of notice on such person, subject to the condition that the grounds relied upon for the subsequent period are same as are mentioned in the earlier notices. (1B) Notwithstanding anything contained in sub-section (1), in a case where the amount of service tax payable has been self-assessed in the return furnished under sub-section (1) of section 70, but not paid either in full or in part, the same shall be recovered along with interest thereon in any of the modes specified in section 87, without service of notice under sub-section (1). (2) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of service tax due from, or erroneously refunded to, such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (2A) Where any appellate authority or tribunal or court concludes that the notice issued under the proviso to sub-section (1) is not sustainable for the rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all apply to a case where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of - (a) fraud; or (b) collusion; or (c) wilfulmis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax. (5) The provisions of sub-section (3) shall not apply to any case where the service tax had become payable or ought to have been paid before the 14th day of May, 2003. (6) For the purposes of this section, "relevant date" means, - (i) in the case of taxable service in respect of which service tax has not been levied or paid or has been short-levied or short-paid - (a) where under the rules made under this Chapter, a periodical return,showing particulars of service tax paid during the period to which the said return relates, is to be filed by an assessee, the date on which such return is so filed; (b) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (c) in any other case, the date on which the service tax is to be paid un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 12C of the Central Excise Act, 1944 (1 of 1944) or, as the case may be, refunded to the person who has borne the incidence of such amount, in accordance with the provisions of section 11B of the said Act and such person may make an application under that section in such cases within six months from the date of the public notice to be issued by the Central Excise Officer for the refund of such surplus amount. 7.4 On going through the said provisions, I hold that if any amount is collected more than the actuals, the said amount is recoverable from the assessee under Section 73-A of the Act. Although show cause notice invoked the provisions of Section 73-A of the Act, but the adjudicating authority has not invoked the provisions of Section 73-A of the Act and the said findings of the adjudicating authority have not been challenged by either of the side before any appellate authority. In these circumstances, I hold that the confirmation of the excess amount recovered by the appellant cannot be demanded under Section 73 of the Act. Therefore, the demand confirmed under Section 73 of the Act excess recoveries made by the appellant on account of service tax cannot be demanded under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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