TaxTMI 
TaxTMI 
TaxTMI 
2015 (3) TMI 347
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.... Tribunal was correct in recording the finding that the appellant had not placed any evidence that they have not rendered any service or received payment by failing to understand that calling for such evidence of non-existence fact is contrary to law? 3. Whether the Tribunal was correct in not considering the provisions of Section 68 of the Finance Act read with Section 6 of the Service Tax Rules mandating the liability to pay service tax by the service provider only upon realization of the value during the material time? 4. Whether the Tribunal was correct in considering the Auditor's Certificate only for the purpose of accepting the prima facie view of they being not liable to pay tax under the taxable Commercial Training or Coaching Service, while ignoring the other part of the certificate certifying to the amounts shown as Sundry Debtors on which tax was demanded under the Management Consultancy Service? 5. Whether the Tribunal was correct in distinguishing the judgment of the Hon'ble Supreme Court in the case of Benara Valves Ltd. Vs. CEX reported in 2006 (204) E.L.T. 513 (SC) and by recording that the direction to pre-deposit a sum of Rs. 20 lakhs out of the total ....
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....riod of contract did not take place. Similarly there was another project for a sum of Rs. 6.74 crores in respect of M/s.Rainstek Systems Private Limited, which was also reflected in the annual accounts. The assessee pleaded that this project also did not materialise and they did not receive any money. The specific case of the assessee before the Adjudicating Authority was that there was no service rendered and consequently, there was no receipt of money. 4. Before the Adjudicating Authority the Department alleged that these were actual receipt of money in respect of taxable service and therefore accounted for in the books of accounts. The assessee claimed that they have shown the amount said to have been received on the services provided as sundry debtors in their balance sheet. The assessee also stated that the Department has only gone on the plea that this amount was reflected in the profit and loss account as receipts, but failed to take note of the fact that the said amount was shown as sundry debtors, as the assessee has not rendered any service. 5. The Adjudicating Authority did not accept such a plea of the assessee, but on the basis of the statement made by the non-execut....
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....nine Lakhs fifty six thousand four hundred and five only) on M/s.Kaashyap Technologies Limited, Chennai, being the service tax payable under 'Management or Business Consultancy Service' for the period from April 2006 to March 2009 under Section 73 of the Finance Act, 1994. 28. I also confirm the amount of Rs. 40,19,870/- (Rupees forty lakh nineteen thousand eight hundred and seventy only) on M/s.Kaashyap Technologies Limited, Chennai, being the service tax payable under 'Commercial Training or Coaching Service' for the period from April 2006 to March 2009 under Section 73 of the Finance Act, 1994. 29. I further confirm the amount of Rs. 1,45,224/- (Rupees one lakh forty five thousand two hundred and twenty four only) on M/s.Kaashyap Technologies Limited, Chennai, being the irregular availment of Cenvat credit under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 73 of the Finance Act, 1994. 30. I hereby confirm the interest at appropriate rates on the demands confirmed in paras 27, 28 and 29 above from the due date till actual date of payment under Section 75 of the Finance Act, 1994 read with Rule 14 of the Cenvat Credit Rules, 2004. 31. I hereby imp....
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....ansactions collapsed in both the cases. Hence, we find that the applicant failed to make out a prima facie for waiver of predeposit of entire amount of dues in this issue." 10. However, the Tribunal, taking note of the Auditor's certificate in respect of commercial training and coaching service and taking into account the financial hardship pleaded by the appellant, directed the appellant to make a pre-deposit of Rs. 20.00 lakhs. 11. Not satisfied with the order of the Tribunal directing the appellant to make a pre-deposit of Rs. 20.00 lakhs, the assessee filed modification petition before the Tribunal relying upon the decision in the case of Benara Valves Ltd. Vs. CCE - 2006 (204) ELT 513 (SC). The Tribunal, by order dated 11.11.2014 in Miscellaneous Order No.41909 of 2014, held that there was a factual dispute of the collection of the amount as well as rendering of the service and the same would be verified at the time of hearing of appeal. With regard to the reliance placed by the assessee on the decision of the Supreme Court, the Tribunal held that the demand of tax of about Rs. 1.41 crores along with interest and penalty equal to tax, the direction of pre-deposit of Rs. ....
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.... the assessee did not receive any amount, since the project has been cancelled. Hence, the said amount was shown as sundry debtors. He relied on the decision of the Supreme Court in the case of Benara Valves Ltd. Vs. CCE - 2006 (204) ELT 513 (SC) and submitted that when there is an undue hardship, the Tribunal has to take into consideration the financial hardship of the assessee company for the grant of waiver of pre-deposit. Hence, the order of the Tribunal has to be set aside. 14. Heard learned counsel appearing for the assessee and the learned Standing Counsel appearing for the Revenue and perused the materials placed before this Court. 15. It is seen from the order of the Adjudicating Authority that on the basis of the investigation and after scrutinizing the statutory records, the Adjudicating Authority has come to the conclusion that the appellant has rendered taxable service and the profit and loss account showed receipt of amount in respect of such taxable service. The assessee had not produced any material to disprove the same except stating that no money has been received. As to whether such a mere statement that no service was rendered can be an acceptable evidence is ....