TMI Blog2024 (4) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... reflected in balance sheet without causing any enquiry as to whether the services in question were rendered or otherwise. It is not correct to confirm the demand just on the basis of balance sheet without identifying the service provider, service receiver and the consideration received thereof. Moreover, the appellant submits that most of the advances have been since returned to the respective parties as no services could be provided or the same were adjusted against services exported - Tribunal held in the case of M/S GO BINDAS ENTERTAINMENT PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX, (NOIDA) [ 2019 (5) TMI 1487 - CESTAT ALLAHABAD] that it is well settled law that no demand can be confirmed by comparing the ST-3 return figures with balance sheet figures, in the absence of any evidence to the contrary that income in the balance sheet, if excess, reflects the providing of taxable services. Appellants have received services from their associated enterprise for which expense was booked but remittance has not been made - HELD THAT:- The appellant submitted that out of a total expense of 2.53 Cr under dispute, they have already paid 2.20 Cr and the Service Tax of the same has been al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices received from their associated companies. A show cause notice dated 21.10.2009 was issued to the appellants seeking Service Tax on the above issues. Commissioner (Adjudication) New Delhi, vide the impugned order, confirmed a demand of Rs. 2,01,45,539 along with interest; imposed penalties of Rs,3,00,00,000 under Section 78 of the Finance Act 1994; of Rs.10,000/- under Section 77 Ibid, read with Rule 15 of Cenvat Credit Rules, 2002/2004 and of Rs.200/- or 2% whichever is higher under Section 76. Hence,this appeal. 3. Shri Deepak Thakur,Learned Counsel for the appellants submits that demand of Rs.96,92,204/- is not maintainable as Rule 6 of Cenvat Credit Rules, 2004 is not attracted on supplies made to SEZ units; Rule 6 (6A) was inserted to provide,retrospectively,that Rules 6 (1), (2) and (3) do not apply to Services provided to SEZ in view of the amendment the demand does not survive. 3.1. Ld. Counsel further submits that the demand of Rs.69,17,440/- raised on the advances received from the customer is erroneous as the same is raised on the basis of entries reflected in the balance sheet; no corroborative evidence has been produced by the department to show that the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 (10) S.T.R. 578 (Tri. - Bang)] M/s M.P. Audyogik Kendra Vikas Nigam vs. Principal Commissioner of Central Goods Service Tax and Central Excise, Indore [2023-VIL-466- CESTAT-DEL-ST] Ramkrishna Sales Pvt. Ltd. vs. Commissioner of Customs, Ahmedabad [2008 (230) E.LT. 431 (Tri. Ahmd.)] Sarita Software Indus Ltd. vs. Commissioner of C. Ex., Visakhapatnam [2010 (251) E.L.T. 248 (Tri. Bang.)] Indian National Shipowners Association and Another vs. Union of India and Others [(2009) 21 VST 60] 23. M/s GD Goenka Private Limited vs. Commissioner of Central Goods and Services Tax, Delhi South [Service Tax Appeal No. 51787 of 2022) MITC Rolling Mills vs. Commissioner of Central Excise, Nashik [2019 (366) ELT. 882 (Tri. - Mumbai)] Aditya College of Competitive Exam. Vs C.C.E. Visakhapatnam reported in 2009 (16) S.T.R. 154 (Tri. Bang.) Steel Authority of India Ltd. Vs State of Orissa and Others. (And Other Appeals) reported in 2000 (118) S.T.C 297 (SC) 4. Ld. Counsel further submits that extended period cannot be invoked in the instant case, as the issue pertains to interpretation of the provisionsof law which were fast changing during the relevant time; there was no positive act of suppression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is pending decision at the Hon ble Apex Court. 5.1. As regards, the demand of service tax on advances received from customers and non-payment of interest amount on delayed payment of service tax, learned Authorized Representative submits that the Adjudicating Authority has decided on the basis of the documents submitted by the appellants. Regarding the admissibility of credit in respect of supplies made to SEZ, learned Authorized Representative submits that the amendment is only for the period 10th February 2006 to 28th February 2011 as per the Finance Act 2012 and therefore, duty demand for the period October 2005 to 9th February 2006 is not covered by retrospective amendment; therefore, the appellants are liable to pay service tax for that period. 6. Heard both sides and perused the records of the case. 7. We find that the first demand is confirmed on the allegation that the appellants have availed Cenvat Credit in excess of 20% of the amount payable on taxable output service in respect of services provided by them to SEZ, in terms of Rule 6 of CCR, 2002/2004 during the relevant period. We find that the issue is no longer res integra in view of the retrospective amendment, vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants for rendering the services, we find that the demand is raised and confirmed on the basis of figures reflected in balance sheet without causing any enquiry as to whether the services in question were rendered or otherwise. We find that it is not correct to confirm the demand just on the basis of balance sheet without identifying the service provider, service receiver and the consideration received thereof. Moreover, the appellant submits that most of the advances have been since returned to the respective parties as no services could be provided or the same were adjusted against services exported. We find that Tribunal held in the case of Go Bindas Entertainment ltd. (Supra) as follows: 4. After hearing both the sides duly represented by Learned Advocate Shri Kamal Jeet Singh for appellant and Learned AR Shri Sandeep Kumar Singh, Deputy Commissioner for Revenue, we note that the entire case of Revenue is based upon the comparison of figures, as pointed out in the balance sheet with the figures reflected in the ST-3 returns. The appellant has explained that such difference has occurred on account of the accounting system as per the Income Tax Law, which explanation, in prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n inserting an Explanation has specifically stated that it would be effective from the date of its publication, it takes effect only from that date. In the instant case also, Notification No. 19/08 introducing Explanation to Rule 6 of the Service Tax Rules, 1994 contains a provision that it shall be effective only from the date of its publication. The amendment to Section 67 is a substantive one and will be applicable only from the date of its introduction and not retrospectively, eventhough the Explanation uses the expression for removal of doubts . The decision of the Tribunal in CCE, Pune v. Bajaj Auto Ltd. [1999 (111) E.L.T. 846] relied upon by the lower appellate authority to conclude that the amendment, which is clarificatory in nature, is retrospective, is not applicable in the facts of the present case, as the Tribunal held in that case that clarificatory amendments are retrospective only when they did not materially change, the existing provisions, while in the instant case, there was no provision either in Section 67 of the Finance Act or Rule 6 of the Service Tax Rules to suggest that in the case of transactions between associated enterprises, service tax has to be paid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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