2018 (5) TMI 486 – CESTAT CHENNAI – TMI – Short payment of service tax – main allegation is that service tax paid by the tax payer as shown in the ST-3 returns for this period was less than the tax payable as calculated on the value shown in the same ST-3 returns by them for the impugned period – penalty – Held that: – it is clear that the adjudicating authority has primarily focused on comparing the figures given by the appellants in the first and second round of adjudication. In the first round of litigation, CESTAT Chennai had clearly indicated that the adjudicating authority came to pass the impugned demand as the proper reconciliation exercise was avoided.
–
These directions of the CESTAT Chennai have evidently not been followed in the de novo adjudication. In the circumstances, while this Bench is averse to remand matters again and again, we are left with no other alternative but to once more send the matter back to the adjudicating authority to cause reconciliation as per t
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ce etc. Scrutiny of ST-3 returns and records maintained by the appellants indicated that they had not discharged service tax liability in full for the period October 2005 to March 2006. The main allegation was that service tax paid by the tax payer as shown in the ST-3 returns for this period was less than the tax payable as calculated on the value shown in the same ST-3 returns by them for the impugned period. When the appellants had submitted that the difference in service tax payable alleged in the notice was due to the fact that they had wrongly indicated the taxable value in the ST-3 returns for the impugned period as inclusive of service tax which had resulted in calculation of service tax on the value including the tax. In the first round of adjudication, the adjudicating authority confirmed demand of service tax amount of ₹ 1,86,23,877/- with interest thereon and also imposed penalty of ₹ 2,00,00,000/- under Section 78 of the Finance Act, 1994. On appeal, CESTAT Che
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
tire information furnished by the appellants. Ld. Counsel also contends that department has not proved that the appellants had received higher taxable value than what was declared in the ST-3 returns. He submits that the demand has resulted only due to misunderstanding of the new format of ST-3 which was made applicable from October 2005; that in the old format in Column (3), the tax payer was only required to indicate value of taxable service charged or billed (indicate break up of the amount month wise) , whereas in the new format, in Column (1), the assessee was required to give details of amount received towards taxable service/s provided . Ld. Advocate submits that incomplete appreciation of the new format many assessees, like them had indicated that the total value including the value on tax paid or suffered in Column (1) of the new format. The department has however taken that value as the value of taxable value of services and has demanded service tax liability on the purported
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
aring the figures given by the appellants in the first and second round of adjudication. In the first round of litigation, CESTAT Chennai had clearly indicated that the adjudicating authority came to pass the impugned demand as the proper reconciliation exercise was avoided. The relevant portion containing these observations are reproduced for ready reference : 4. The appellants had furnished details of tax paid on the disputed services and their service tax liability under an enclosure to their reply to the Show Cause Notice on 29.5.2007. They paid an amount of ₹ 24,99,432/- which was not actually necessarily. They have since filed a claim for refund of the same. The Commissioner found discrepancies between the particulars furnished by the appellants on 18.10.2006 and on 25.5.2007 which had arisen on account of the difficulties faced by the appellants in furnishing the correct figures. However, the Commissioner had not attempted to verify and ascertain the correct figures. The r
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ts. He has no objection to the matter being remanded. 7. On a careful consideration of the case records and the submissions made by both sides we are convinced that the ends of justice require that the impugned order be set aside and the matter remanded for fresh adjudication after allowing the appellants adequate opportunity for presenting their case. The appeal is thus allowed by way of remand. We find that these directions of the CESTAT Chennai have evidently not been followed in the de novo adjudication. In the circumstances, while this Bench is averse to remand matters again and again, we are left with no other alternative but to once more send the matter back to the adjudicating authority to cause reconciliation as per the directions already given by the Tribunal in their earlier order dt. 04.06.2009, reproduced supra. It is also directed that the adjudicating authority will cause such reconciliation based on the figures and data provided by the appellants vide their letter dt. 0
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =