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TMI Blog2024 (11) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... rate, Group VII, Kolkata. During the course of such audit, certain deficiencies were pointed out by the audit team. Some of the deficiencies were complied with by the assessee and discharged their tax liabilities as per the findings of the audit team. 2.1. Consequent to the findings of the audit team, a Show Cause Notice dated 23.04.2014 was issued to the assessee inter alia demanding Service Tax of Rs.1,12,00,470/- for the period from April 2008 to March 2013. The Notice also proposed recovery of irregularly availed CENVAT Credit amounting to Rs.18,28,529/-. The Notice made the allegations on account of non-payment / short payment of Service Tax under the following categories: - i. Mandap Keeper Service ii. Renting of Immovable Property iii. Electricity Charges iv. Foreign Remittances 3. The said Notice was adjudicated by the Ld. Commissioner vide the impugned Order-in-Original Sl. No.53/COMMR/ST-I/KOL/2015-16 dated 14.03.2016 wherein he has confirmed the demand of Service Tax of Rs.50,19,379/- and dropped the remaining demand totally amounting to Rs.61,81,091/- [Rs.1,34,256 + Rs.52,530/- + Rs.59,94,305/-]. The ld. adjudicating authority has also ordered for recovery of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of the figures which are taken from the financial statement; the liability has been calculated on the basis difference and these figures are not related to the taxable services received by them. 5.1.4. Regarding the demand for the Financial Year 2012-13, the assessee submits that the demand of Rs. 11,57,196/-has been confirmed on the basis of the figures which are taken from the financial statement; the liability has been calculated on the basis of difference. They submit that these figures are related to the taxable services on which tax is not payable on the basis of mercantile system of taxation; the RCM is applicable on the payment basis. Accordingly, they submit that the demand of service tax from them is not sustainable. 5.1.5. The assessee further contended that they have made the above submissions before the ld. adjudicating authority, but these claims of the assessee have not been accepted. The Ld. adjudicating authority has not given any findings on their submissions. Accordingly, the appellant submits that the demand of Rs.46,82,053/- confirmed vide the impugned order is not sustainable in law. 5.2. The assessee also submits that the demands for the Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 967 of 2016 filed by the assessee. 7.1. Regarding the Service Tax Appeal No. 76208 of 2016, filed by the Revenue, he fairly concedes that the amount involved in the Revenue's appeal is Rs.59,94,305/- which is below the monetary limit prescribed for filing appeal before the CESTAT as per the revised monetary policy instruction dated 06.08.2024 fixing the threshold limit as Rs.60,00,000/- (Rupees Sixty Lakhs only); that accordingly, this appeal gets covered within the revised National Litigation Policy Instructions referred to supra. Therefore, he agrees that this appeal is liable to be dismissed as withdrawn as per the National Litigation Policy. 8. Heard both sides and perused the appeal records. 9. We observe that out of the demand of Rs.50,19,379/- confirmed in the impugned order, the assessee has claimed that they have paid Rs.3,37,326/- before issue of the Notice and to this effect, they have submitted evidence in respect of the payment made. We have perused the said documents and found that this amount has been paid by the assessee before issuance of the Show Cause Notice. The Annexures to the Show Cause Notice confirm this payment by the assessee before issue of the Show C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he taxable services on which tax is not payable on the basis of mercantile system of taxation; the RCM is applicable on the payment basis. We observe that this claim of the assessee needs to be verified by the adjudicating authority as there is no finding on this aspect by the adjudicating authority in the impugned order. Accordingly, we remand this issue back to the adjudicating authority for the purpose of ascertaining the correctness of the claim made by the assessee in this regard and for passing an appropriate order in respect of the demand of Rs.11,57,196/-. 10. In respect of the reversal of irregularly availed credit amounting to Rs.18,17,206/-, we observe that the assessee has already reversed the Service Tax credit amounting to Rs.17,00,404/- even before issuance of the Show Cause Notice, along with interest. The assessee submitted evidence with respect to this payment. we find that the ld. adjudicating authority has not taken cognizance of the same and not appropriated the same in the impugned order. Since the amount of Rs.17,00,404/- has already been paid along with interest before issue of the Notice, which is evident from the Annexure to the Show Cause Notice. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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