2013 (6) TMI 799

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....appellant, M/s. Sai Labour Contractor, Aurangabad, undertook the activity of supply of manpower to their various clients. The said services were rendered by the appellants to textile mills and also to Maharashtra State Secondary School of Certificate Board, Aurangabad (SSC Board in short). On scrutiny of the records filed by the assessee, it was seen that the appellant had declared the value of taxable service at Rs. 5,03,01,707/- whereas from the audited balance sheet it was seen that the income of the appellant was Rs. 7,78,90,596/- during the same period and on the differential value they had not discharged the service tax. It appeared that the appellant short paid service tax to the extent of Rs. 95,39,587/-. Accordingly a notice dated ....

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....70,83,033/-. 4. The financial position of the appellant is not sound and therefore, while passing the interim order, leniency may be shown. 4. The ld. Additional Commissioner (AR) appearing for the Revenue on the other hand submits that it is a clear case of misdeclaration by the appellant. The ST-3 return figures do not match with the figures reflected in the books of accounts of the appellant. He relies on the decision in the case of Ideal Security v. CCE, Allahabad - 2011 (23) S.T.R. 66 (Tri.-Del.) wherein, this Tribunal held that service tax is payable on the whole amount which has been charged for rendering of security services including the payment towards ESI and PF and there is no provision for excluding any of these....

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....nt received has to be treated as cum-tax and the amount has to be apportioned between the service tax liability and the consideration. There is no provision in law that merely because the recipient of service did not pay the tax, the appellant is not liable to pay service tax. In view of the above, the contention of the appellant in this regard has no merits and is accordingly rejected as not sustainable. As regards the financial difficulties urged by the appellant, it is a fact that the appellant has received consideration for the services rendered. Only for the payment of service tax, the appellant is expressing financial difficulties. Even if the whole amount received is treated as cum-service tax, the tax liability would be Rs. 70 lakhs....