S.A. Realty Versus Commissioner of GST, Mumbai Central
Service Tax
2018 (10) TMI 1072 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 17-9-2018
APPEAL No. ST/87412/2018 – A/87308/2018
Service Tax
Dr. D.M. Misra, Member (Judicial)
Shri Jinit R. Shah, C.A., for appellant
Shri M.P. Damle, Assistant Commissioner (AR), for respondent
ORDER
This is an appeal filed against order-in-appeal No. MUM/DGPM/WRU/APP-54/17-18 dated 27.3.2018 passed by Principal Additional Director General, DGPM, Customs & Central Tax, WRU, Mumbai.
2. Briefly stated the facts of the case are that the appellants are engaged in providing the service of construction of residential complex service during the relevant period. The show cause cum demand notice was issued to the appellant on 21.10.2015 alleging non-payment of service tax during the period 1.7.2010 to 30.6.2012 amounting to Rs. 8,27,234/- and short payment of service tax of Rs. 1,33,477/- for the relevant period. On adjudication,
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nditions laid down under Section 78 of the Finance Act, 1994. On the demand of Rs. 1,33,477/-, he submits that the said amount has been confirmed by the learned Commissioner (Appeals) taking into consideration the value of loans and other entries in general vouchers as the taxable value received in providing the taxable services during the relevant period. He has submitted that the value of loan and the value of other non-taxable services were wrongly computed in arriving at the gross taxable value. Therefore, the service tax of Rs. 1,33,477/- is unsustainable in law. He has submitted that though necessary evidences of acknowledgment of the loan, general vouchers etc. were placed before the authorities below, but the same were not considered.
4. Per contra, learned AR for the Revenue reiterated the findings of the learned Commissioner (Appeals).
5. I find that undisputedly, the appellant had though rendered taxable services under the category of construction of residential complex se
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ection in their books of account etc., I find that both the authorities below have not addressed on the defence advanced by the appellant. Therefore, to ascertain the correctness of the claim of the appellant, the matter needs to be remanded to the adjudicating authority. The adjudicating authority would consider the plea of the appellant and the evidences that would be produced by them during the course of adjudicating proceedings and decide the issue accordingly.
6. In the result, the impugned order is modified to the extent of allowing the benefit of discharging 25% of the penalty imposed under Section 78 of the Finance Act, 1994, subject to fulfilment of the conditions and the correctness of the liability of service tax of Rs. 1,33,477/- be ascertained afresh based on the evidences and record by the adjudicating authority.
7. Appeal is allowed by way of remand the adjudicating authority in the light of the observation made as above.
(Pronounced in court)
Case laws, Decisions
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