Commissioner of Howrah CGST & C. Ex Commissionerate Versus M\/s Walzen Strips (P) Ltd.
Service Tax
2018 (8) TMI 492 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 23-7-2018
Appeal No.ST\/75604\/2018 – FO\/76466\/2018
Service Tax
Shri P.K. Choudhary, Member (Judicial)
\nShri H.S. Abedink, AC(AR) for the Appellant\/Applicant (s)
\nShri N.K. Chowdhury, Advocate for the Respondent (s)
\nORDER
\nPer Shri P.K. Choudhary
\nThe show cause-cum-demand notice dated 12.04.2013 was issued to recover Rs. 20,53,252\/- alongwith interest and imposition of penalty. The adjudicating authority confirmed the demand of service tax of Rs. 20,53,252- along with interest and imposed penalty on equal amount under Section 78 of the Finance Act, 1994. On appeal the ld. Commissioner (Appeals) set aside the adjudication order and allowed the appeal filed by the assessee. Hence, revenue is in appeal before the Tribunal.
\n2. Heard both sides and perused the appeal records.
\n3. It is the case of the Re<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n five percent on the value of exempted service i.e. Rs. 4,10,65,033\/- under Rule 6(3)(i) of the Rules. The appellant contended that the observation of the lower authority and stated that the alleged availing of credit on the inputs on Security Service, Courier Service, Labour Charges etc. were not common inputs and they did not avail any credit on input service related to road construction and hence they did not maintain separate accounts. They also contended that there is no evidence that they were availing any common input service for providing taxable service and exempted service and did not maintain separate accounts for the same. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n investigation and without any basis of evidence when the appellant claims that they did not maintain separate ledger as no Cenvat Credit was taken being exempted service. It is also noticed from their submission that the appellant did not sub-let the work of road construction to any other sub-contractor but executed the work with their own labours. I find the lower authority failed to counter the reply of the appellant that they did not avail & utilise the Cenvat Credit on exempted service. I find that before raising such demand, proper investigation is required and in absence of any material facts with corroborative evidence, the same is not maintainable. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ords during the investigation, the appellant produced all the records, as demanded and the department did not raise objection towards non-submission of document. Hence, the appellant cannot be accused that they have suppressed the material facts to the department. I find that the fact of taking Cenvat Credit on common input service which was used for providing both taxable and exempted service for road construction was within the knowledge of the department from the statutory return as was filed as per provision of law. I find that they did not maintain separate register for providing service to M\/s. Yash Infraroads Ltd. as no Cenvat Credit was taken on any input service being exempted service. I find the lower authority has failed to establish the suppression of fact on the part of the appellant with intent to evade payment of service tax by considering any evidentiary proof. So, the appellant cannot be held as guilty towards suppression or mis-statement of facts to evade tax. Accordi<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" Commissioner of Howrah CGST & C. Ex Commissionerate Versus M\/s Walzen Strips (P) Ltd.Service Tax2018 (8) TMI 492 – CESTAT KOLKATA – TMICESTAT KOLKATA – ATDated:- 23-7-2018Appeal No.ST\/75604\/2018 – FO\/76466\/2018Service TaxShri P.K. Choudhary, Member (Judicial) Shri H.S. Abedink, AC(AR) for the Appellant\/Applicant (s) Shri N.K. Chowdhury, Advocate for the Respondent (s) ORDER Per Shri P.K. … Continue reading “Commissioner of Howrah CGST & C. Ex Commissionerate Versus M\/s Walzen Strips (P) Ltd.”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-13147","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/13147","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=13147"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/13147\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=13147"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=13147"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=13147"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n6. On perusal of the records, I find that the department did not specify the exact service, on which they have taken credit and utilised and also failed to provide any evidence to prove that said services were common input service and had been used for providing both taxable and exempted service. From the findings in the O\/O, I find that the lower autho<\/p>\n
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\n7. Further, the appellant M\/s. Walzen Strips Pvt. Ltd. Submitted letter enclosing the certificate issued by Bothra Nirmal Associates, Chartered Accountants and certified that “We have checked and verified the books of accounts and other relevant paper and records of M\/s. Walzen Strips Pvt. Ltd. Of P-250, CIT Road, Scheme-VI, Kolkat<\/p>\n
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