TMI Blog2024 (4) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant is admitted the gross value of taxable service will be reduce substantially. Appellants had made this claim before the adjudicating authority and the first appellate authority and had submitted a chart duly certified by a Chartered Accountant, showing that the during the entire period of dispute the invoices issued by the appellant were in respect Truck, Tractor, Dumper Hiring Charges on some of the invoices even the registration number of vehicle was also mentioned. The coverage of the services under the category of taxable service was gradually widened, every year. Appellants have claimed that the major chunk of the services provided by them were within this category and specified as taxable service only from 16.05.2008. As no finding has been rendered by the adjudicating authority or the first appellate authority on this aspect, while adjudicating the case, the matter needs to be remanded back to the original authority for recording specific findings on this issue. The matter remanded back to the original authority for reconsideration of the issue to the extent of allowing deduction of Rs. 84,17,327.67/- which appellant claim were received by them against the servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -) should not be demanded and recovered from them alongwith appropriate Interest under the proviso to Section 73(1) of the Act r/w Section 75 of the Act. 2. Penalty should not be imposed upon them under the erstwhile Section 75A read with Section 77 of the Act for violation of Section 69 of the Act/rule 4 of the Rules. 3. Penalty should not be imposed upon them under Section 77 of the Act for violation of Section 70 read with rule 7 of the Rules, in case of each default 4. Penalty should not be imposed upon them under section 76 of the Act for violation Section 68 of the Act read with Rule 6 of the Rules. 5. Penalty should not be imposed upon them under Section 78 of the Act. 2.5 The show cause notice was adjudicated as per the order in original referred in para 1 above. Appeal filed by the appellant before the first appellate authority has been dismissed as per the impugned order. 2.6 Aggrieved appellant have filed this appeal. 3.1 We have heard Shri Atul Gupta, Advocate for the appellant and Shri Manish Raj, Authorized Representative for the revenue. 3.2 Arguing for the appellant learned counsel submits that: Show cause notice is vague. Quantification of the demand as per the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her submitted to the adjudicating authority nor provided to the division/Range staff, the chart submitted by the party can t be accepted. Further, the chart provided by the party is also not proper as per valuation aspect. I find that the appellants have neither contested nor controverted the aforesaid finding. It is also evident from the records that the appellants have not furnished any detail in any manner along with the present appeal in confirmation of their contention. In view of above, I find no strength in the contention of the appellants 7. I have gone through the facts of the case and the material available on record as also the submissions of the appellants with reference to the impugned Order-in-Original dated 14.06.2011. It is an admitted fact that the appellants did not contest the Show Cause Notice dated 22.10.2010 on merits. There is no dispute regarding providing of services and receipt of value of taxable service. The relief regarding penalty has already been giver to the appellants in the Order-in-Original and the department has generously waived all the penalties under Section 80 of the Finance Act, 1994. The appellants are apparently aggrieved on account of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supporting documents were neither submitted to the Adjudicating Authority nor provided to the division /Range staff, the chart submitted by the party can t be accepted .Further the chart provided by the party is also not proper as per valuation aspect. I also take note of the charges of non-payment/short payment which have not been rebutted by the party. It is also a fact that the party failed to discharge the statutory burden of declaring the value of taxable service to the department which amounts to suppression of facts and provision of extended period is invokable in this case. Thus I find that the demand as proposed in the Show Cause Notice is liable to be confirmed. It has also been observed that more than 200 such show cause notices have been issued by the division and Commissionerate Allahabad. It indicates that there is mass unawareness amongst the service provider of that area. It is also obvious that the party is ready to deposit the due service Tax. In my perception Service Tax was not deposited due to unawareness only, which may be taken as reasonable cause for failure of deposit of the Service Tax. Therefore, I am not inclined to impose any penalty as proposed in he S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices also were submitted by M/s Hindalco Industries Limited to departmental representative vide its letter dated 09.06.2011 in compliance to department s letter no 855 dated 30.05.2011 asking M/s Hinadalco Industries Limited to get the records verified. 12. The appellant vide letter dated 05.05.2011 represented its case before the office of Commissioner of Central Excise and Service Tax contending SCN mainly on the following grounds a) The gross turnover shown in SCN includes PF and Bonus which should be excluded as separate notice for P F and Bonus was served upon to the appellant. b) Since the alleged services in the appellant case was made effective from 16/06/2005 the value of services provided by appellant from 01/04/2005 to 15/06/2005 and value of services toward non taxable services of STGS from 01/04/2005 to 15/05/2008 which have been made part of gross turnover should be excluded from the gross turnover. c) The figures of gross value of services as confirmed by M/s Hindalco Industries Limited was inclusive of service tax amounting to Rs 12,88,132.00 should be excluded from the gross turnover. d) It was submitted by the appellant that penalty under section 76 and 78 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand cum show cause notice fro recovery of service tax involved on the amount of Provident Fund and Bonus received by them, if any, which is included in in above gross value has already been issued separately. Thus service tax on remaining amount of gross value of Rs 1,12,63,799/- remains recoverable from the party. Service tax involved on this remaining gross value comes to the tune of Rs. 12,88,132/- (Service tax Rs 11,56,872/- + Education Cess Rs 25,137/- + Secondary Higher Education Cess Rs 6123/-) for the period as detailed in Annexure B to this notice, to the credit of Central Government, thereby contravening the provisions of Section 68 of the Act read with Rule 6 of the Rules. By doing so they have made themselves liable to penalty under Section 76 of the Act. Whereas the party have not get themselves registered under Section 69 of the Finance Act, 1994 in due time. Scrutiny of the records available in the office of the ..revealed that the party have not returns as detailed in Annexure A. after registration the party have filed ST-3 return but they have suppressed the gross value of services. Thus partyu have suppressed material facts from the department (1) by not getti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specifically the services under the category of Supply of Tangible Good services. These service became taxable with effect from 16.05.2008. Appellant have claimed that the value of the taxable services provided by them under this category for the period prior to levy of service tax. Was about Rs 84,17,327.67. If the claim of the appellant is admitted the gross value of taxable service will be reduce substantially. Appellants had made this claim before the adjudicating authority and the first appellate authority and had submitted a chart duly certified by a Chartered Accountant, showing that the during the entire period of dispute the invoices issued by the appellant were in respect Truck, Tractor, Dumper Hiring Charges on some of the invoices even the registration number of vehicle was also mentioned. Both the authorities have ignored the said submission of the appellant and have proceeded to adjudicate the matter on the basis of the information received by the revenue from M/s Hindalco Industries Ltd., assuming that the services provided by the appellant were falling under the category of taxable service without even speaking a word about the classification of service. Undisputedl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of U.P. 1962 (1) SCR 574] but the plea of res judicata has to be specifically and expressly raised. [See : Medapati Surayya v. Tondapu Bala Gangadhara Ramakrishna Reddi - AIR (35) 1948 PC 3, 7]. This view has been recently reiterated in V. Rajeshwari v. T.C. Saravanabava - 2003 (10) Scale 768, where it is said that the foundation of the plea of res judicata must be laid in the pleadings. If this was not done, no party would be permitted to raise it for the first time at the stage of the appeal. The only exception to this requirement is when the issue of res judicata is in fact argued before the lower Court. In this case not only had the plea not been taken by the Revenue at any stage before any of the authorities, but arguments exactly to the contrary had been put forward by the respondent. We will not permit the plea to be raised now. . 4.14 The arguments being advanced by the appellant in the present appeal were foreclosed in terms of the submissions made by the appellant before the Adjudicating authority. Acting on the submissions made by the appellant adjudicating authority has not imposed any penalty. Raising these arguments for the first time in subsequent proceedings wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10, Katyayana is quoted as laying down that one against whom a judgment had formerly been given, if he bring forward the matter again, must be answered by a plea of Purva Nyaya or former judgment (Macnaughten and Colebrooke s translation, page 22). The doctrine, however, seems to have been recognized much earlier in Hindu Jurisprudence, judging from the fact that both the Smriti Chandrika (Mysore Edition, pages 97-98) and the Virmitrodaya (Vidya-Sagar Edition, page 77) base the defence of Prang Nyaya (former decision) on the following text of the ancient law-giver Harita, who is believed by some Orientalists to have flourished in the 9th Century B.C. and whose Smriti is now extant only in fragments :- The plaintiff should be non-suited if the defendant avers : in this very affair, there was litigation between him and myself previously, and it is found that the plaintiff had lost his case . There are texts of Prasara (Bengal Asiatic Society Edition, page 56) and of the Mayukha (Kane s Edition, page 15) to the same effect. Among Muhammadan law-givers similar effect was given to the plea of Niza-i-munfasla or Amar Mania taqrir mukhalif. Under Roman Law, as administered by the Proetor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had not raised this issue. Therefore, in our judgment, such an issue cannot be raised in this proceeding in view of the doctrine of Constructive Res Judicata. 20. It may be noted in this context that while applying the principles of Res Judicata the Court should not be hampered by any technical rules of interpretation. It has been very categorically opined by Sir Lawrence Jenkins that the application of the rule by Courts in India should be influenced by no technical considerations of form but by matter of substance within the limits allowed by law . [See Sheoparsan Singh v. Rammanandan Prasad Singh, (1916) 1 I.L.R. 43 Cal. 694 at page 706 (P.C.)]. 21. Therefore, any proceeding which has been initiated in breach of the principle of Res Judicata is prima-facie a proceeding which has been initiated in abuse of the process of Court. 22. A Constitution Bench of this Court in Devilal Modi v. Sales Tax Officer, Ratlam Ors. - AIR 1965 SC 1150, has explained this principle in very clear terms : But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Art. 226 cannot be answered merely in the light of the signific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y hold that the writ case is fit to be dismissed on the ground of res judicata. 27. In view of such authoritative pronouncement of the Constitution Bench of this Court, there can be no doubt that the principles of Constructive Res Judicata, as explained in explanation IV to Section 11 of the CPC, are also applicable to writ petitions. 4.15 Hon ble Supreme Court has in the case of M J exports [2015 (325) E.L.T. 216 (S.C.)] held as follows: 11. Mr. K. Radhakrishnan, learned senior counsel appearing for the Department, has drawn our attention to the Order dated 2-8-2004 which was passed in Writ Petition No. 1278 of 2004. His submission was that in the earlier round of litigation before the High Court when the demand of interest was questioned, it was given up inasmuch as after arguments on this issue, the counsel for the appellant had withdrawn the writ petition. At that time, while allowing the appellant to withdraw the writ petition, the dispute was confined only to the calculation of interest as is clear form the order dated 2-8-2004 itself which specifically referred to the averments made in Paragraphs 6 and 7. These paragraphs have already been extracted above. In Paragraph 6 par ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
