TMI Blog2024 (4) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... lected service tax of Rs 30,172/- on the taxable value of Rs 462239.00. As appellant was himself charging and collecting the service tax, even prior to 16.06.2005, the claim for deduction made by the appellant for deducting this value from the taxable value cannot be acceded to. Thus the gross value of taxable service on which the demand of service tax is made, after allowing the deductions in respect of PF, Bonus and Service Tax paid by M/s Hindalco, as per the chart submitted by the appellant comes to Rs 63,90,554.77/- (Rs 1,77,87,709.00 - Rs 15,16,602.00 Rs 10,45,027.23 - Rs 88,35,525). The demand has been made by taking table value of Rs 64,41,735/-. There are not much difference in the taxable value determined by the department for making the demand and the taxable value that can be determined on the basis of the chart submitted by the appellant. In case of COMMISSIONER OF C. EX., MADRAS VERSUS SYSTEMS COMPONENTS PVT. LTD. [ 2004 (2) TMI 65 - SUPREME COURT] Hon ble Supreme Court has held Once it is an admitted position by the party itself, that these are parts of a Chilling Plant and the concerned party does not even dispute that they have no independent use there is no need f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 orders of the lower authorities is incorrect. Extended period cannot be invoked. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue comes to Rs. 1,77,87,709 - 88,35,525 = Rs. 89,52,184/- and demand should have been raised on this amount. But the impugned show cause notice evidences that the demand was raised on suppressed gross value of Rs. 64,41,735/- i.e. after deducting the amount claimed to relate to Provident Fund. Therefore, the appellant s contention has no strength. 8. On further going through the facts of the case and the material available on record, I find that it is an admitted fact that the appellants did not contest the Show Cause Notice dated 22.10.2010 on merits. I find that the adjudicating authority in this regard has held as under: The party has submitted in their defence reply that they are ready to deposit the service tax, due as per the chart for calculation of tax submitted with reply. Further, they have requested that being ready to pay the tax and being innocent penalty may please be dropped. I have gone through records of the case as well as submissions of the party. The party, is not contesting that they were engaged in providing of taxable services as discussed in the show cause notice. They disputed only on the quantification aspect, as they have submitted a different chart reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice: I find from the totality of circumstances that the party is a contractor of M/s Hindalco Industries Ltd., Renukoot, Sonebhadra. The party had provided the service to M/s Hindalco. The party has submitted in their defence reply that they are ready to deposit the service tax, due as per the chart for calculation of tax submitted with the reply. Further, they have requested that being ready to pay the tax and being innocent penalty may please be dropped. I have gone through the records of the case as well as submissions of the party. The party is not contesting that they were engaged in providing the Taxable services as discussed in the show cause notice. They disputed only on the quantification aspect, as they have submitted a different chart regarding value of the taxable liability. To enquire the correctness of the chart submitted by the party the matter was referred to the concerned Division. However the concerned party has not provided the relevant record to the division or Range staff for verification. Since the 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 accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turnover 1,47,33,668.77 Service Tax 15,17,567 .38 Less service tax already paid as per SCN 9,93,847.00 Net tax payable 5,23,720.88 4.6 Adjudicating authority sought for the verification of the calculation chart submitted by the appellant. However as no verification report was received by him he proceeded to adjudicate the matter, rejecting the calculation chart submitted by the appellant. In his appeal before the Commissioner (Appeal), appellant has specifically stated as follows: The adjudicating authority had directed Range office to get verified the chart submitted as per record of service recipient vide letter C No 1-ST/Misc/Rkt-II/02/06/Pt-1/855 dated 30.05.2011. The verified data were submitted to Range office on 09.06.2011 by the service recipient. The adjudicating authority did not wait for the verification report and has passed the impugned order. 4.7 In the impugned order by referring to show cause notice it has been concluded that the benefit of the payments received towards PF and Bonus has been allowed to the appellant at the stage of show cause notice itself. The relevant extract of the show cause notice is reproduced below: Whereas from the ST-3 returns submitted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06/05- 06 12-May- 05 Boiler House garden Maint 3350.00 3350.00 0 2005- 06 10/05- 06 16-May- 05 Garden work b house May 05 800.00 800.00 0 2005- 06 09/05- 06 16-May- 05 Garden work Plant I II Colony Adm Colony 28300.00 28300.00 0 2005- 06 08/05- 06 21-May- 05 Boiler House garden Maint May 800.00 800.00 0 2005- 06 11/05- 06 23-May- 05 Casual Job Pl.- I II Colony Adm Colony area Garden Maint work 28175.00 28175.00 0 2005- 06 12/05- 06 23-May- 05 Garden Upkeeping Work 800.00 800.00 0 2005- 06 13-18/05- 06 26-May- 05 Manually earthwork Excavation 195816.00 189439.00 6377.00 2007- 08 19/05- 06 26-May- 05 PR-02 Earth Work 23795.00 0.0 23795.00 2005- 06 19/05- 06 26-May- 05 PR-02 Earth Work 0 0 0 2005- 06 20/05- 06 2-Jun- 05 Garden Maint Job Pl. I, Pl. II Adm Colony Etc. May 05 43725.00 43725.00 0 2005- 06 21/05- 06 2-Jun- 05 Garden Work Boiler House 1075.00 1075.00 0 Total 492411.00 462239.00 30172.00 4.9 From the chart above it is quite evident that appellant has during the period prior to 16.06.2005, issuing invoices, claiming the service tax from their service recipient. On Invoice No 13-18/2005-06 dated 26.05.05 Service Tax of Rs 6377.00/- has been charged as per the above chart on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contest the SCN on the merit, and challenging the lack of classification of service category in the SCN. On the basis of the above facts noted in the appeal Commissioner (Appeal) decided the issue of the quantification, which was disputed by the appellant before him. 4.12 In case of Systems Components Pvt. Ltd [2004 (165) E.L.T. 136 (S.C.)] Hon ble Supreme Court has held as follows : 5. .. Once it is an admitted position by the party itself, that these are parts of a Chilling Plant and the concerned party does not even dispute that they have no independent use there is no need for the Department to prove the same. It is a basic and settled law that what is admitted need not be proved. This decision was relied upon by the Delhi Bench in the case of Sodagar Knitwears [2018 (362) E.L.T. 819 (Tri. - Del.)] which has been affirmed by the Hon ble Apex Court as reported at [2018 (362) E.L.T. A213 (S.C.)]. 4.13 In case of ITC Ltd. [2004 (177) ELT 433 (SC)] Hon ble Apex Court observed as follows: 18. Doubtless, the principle of res judicata is a fundamental doctrine of law that there must be an end to litigation. [See Daryao v. The State of U.P. 1962 (1) SCR 574] but the plea of res judicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciple great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties. 16. Justice Tek Chand delivering the unanimous Full Bench decision in the case of Mussanunat Lachhmi v. Mussammat Bhulli (ILR Lahore Vol. VIII 384) traced the history of this doctrine both in Hindu and Mohammedan jurisprudence as follows :- In the Mitakshra (Book II, Chap. I, Section V, verse 5) one of the four kinds of effective answers to a suit is a plea by former judgment and in verse 10, Katyayana is quoted as laying down that one against wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned Judge opined, and in our view rightly, that this was partial recognition of the English rule in so far as it embodied the principles relating to Estoppel by judgment or Estoppel by record. 18. Thereafter, when the Code was again revised in 1877, the operation of the rule was extended in Section 13 and the bar was no longer confined to the retrial of a dispute relating to the same cause of action but the prohibition was extended against reagitating an issue, which had been heard and finally decided between the same parties in a former suit by a competent court. The learned Judge also noted that before the principle assumed its present form in Section 11 of the Code of 1908, the Section was expanded twice. However, the learned Judge noted that Section 11 is not exhaustive of the law on the subject. 19. It is nobody s case that the appellant did not know the contents of FWA. From this it follows that it was open to the appellant to question, in the previous proceeding filed by it, that his land which was acquired was not included in the FWA. No reasonable explanation was offered by the appellant to indicate why he had not raised this issue. Therefore, in our judgment, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them. 25. The Bench also noted that the judgment of the Court of Appeal in Greenhalgh was approved by this Court in State of U.P. v. Nawab Hussain - (1977) 2 SCC 806 at page 809, para 4. 26. Following all these principles a Constitution Bench of this Court in Direct Recruit Class II Engg. Officers Assn. v. State of Maharashtra - (1990) 2 SCC 715 laid down the following principle : ..an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the gro ..... 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