TaxTMI 
TaxTMI 
TaxTMI 
2018 (1) TMI 37
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....he Commissioner of Central Excise, Jaipur. 2. The fact of the case, in brief, as per SCNs are that applicant was providing trucks/trailers to M/s. Shree Cement Ltd and classified such services under category of 'Goods Transport Agency (GTA)'. The Service Tax liability on the said service was discharged by M/s. Shree Cement Ltd under reverse charge mechanism. It has been alleged in the SCN that services provided by applicant fall under the category of 'Supply of Tangible Goods (SOTG)' and not under GTA and applicant have evaded Service Tax amounting to Rs. 55.604 crores during the period 1-4-2009 to 31-1-2014 and Rs. 29.95 crores during the period February, 14 to March, 15. 3. On completion of investigation, in respect of SCN dated 15-10-2014, the applicant was called upon to show cause to Commissioner of Central Excise -1 as to why : (i) Service Tax amounting to Rs. 55.604 crores should not be demanded and recovered under proviso to sub-section (1) of Section 73(1) of the Finance Act, 1994; (ii) Interest should not be demanded and recovered under Section 75 of the Finance Act, 1994; (iii) Penalty under Section 77 ....
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....er of penalty had been made, (iii) Certified copies of relied upon documents had not been submitted, (iv) Challans; showing Duty payment by Service recipient has not been enclosed, (v) Complete ST3 returns for the disputed period had not been enclosed, (vi) Copy of agreement between applicant and M/s. Shree Cements Ltd had not been enclosed, and, (vii) Pages from 246-250 containing details of CN register were not legible. 8. The applicant in their reply dated 23-12-2016 submitted that they would file separate application in respect of SCN dated 14-10-2015; that separate application in respect of co-applicant Shri Arvind Bankat Sarda is being filed. The applicant enclosed certified copies of relied upon documents, duty payment challans of Service recipient, copies of all pages of ST-3 returns, copies of agreements, legible copies of CN Register and requested that the Settlement application may be allowed to be proceeded with. 9. The applicant filed Settlement application in respect of SCN dated 14-10-2015 on 3-1-2017, wherein they admitted additional Service Tax liability of Rs. 3 lakhs in addition to Rs. 7.51 crores already paid by the Service recipient. 10. A hea....
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.... and therefore matter relating to interpretation of classification of taxable Services cannot be brought for Settlement in terms of Section 32E. 13. On a request by the applicants, copy of the Jurisdictional Commissioner's report dated 7-3-2017 enclosing their letter dated 27-2-2017 was provided to the applicant. The applicant vide letter dated 20-3-2017, submitted further comments on the Jurisdictional Commissioner's report and stated that essence of SCN is not really on the issue of classification and the same transaction cannot be taxed twice; that applicant is responsible for transportation of goods to its customers; that at times, the drivers are unable to unload the same quantity that was loaded and this may happen due to pilferage during the course of transportation; that they bear the cost of shortages found during transportation and recover a part of the cost from the drivers for tolerating this act of the driver; that recovery of amount for tolerating this act of driver is subject matter of Service Tax under Section 66E of Finance Act, 1994; that they have discharged Service tax liability of Rs. 3,00,000/- each on 20-12-2016 in respect of SCN dated 15-10-2014 and 14....
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....ot permitted to be pleaded and that despite admitting the application, stress was laid on re-examining the issue in light of classification. The applicant prayed for another hearing and stated that they would make submissions at the time of personal hearing. 19. We have perused the case records and the submissions made during the hearing held on 22-3-2017 and find that as per Section 32E(1), an application for Settlement of a 'case' pending before an adjudicating authority can be filed if, besides other conditions, the additional amount of duty accepted by the applicant exceeds Rupees Three Lakhs. In the instant case, the applicant has accepted duty liability of Rs. 3 lakhs each in respect of both the show cause notices. This duty liability accepted by the applicants is on account of the services falling under Section 66E of the Finance Act, 1994. On perusal of the show cause notices, we find that the admission of Service tax by the applicant on the services falling under Section 66E due to pilferage is not the subject matter of the said SCNs in respect of which the present settlement applications have been filed. The duty liability accepted by the applicant is extraneous to ....
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.... applicant in relation to the "cases" for which the settlement applications have been filed as required under clause (c) of the first proviso to sub-section (1) of Section 32E of Central Excise Act, 1944, makes the applicant ineligible to approach the Settlement Commission in the present form. 21. The applicants during the hearing on 22-3-2017 was asked to submit any further written submissions within a period of seven days. The applicant did not file any written submission but in letter dated 5-4-2017 has requested for another hearing. In the said letter dated 5-4-2017, the applicant has also stated that the applications stand admitted and they were not permitted to plead their case during the hearing on 22-3-2017. 22. During the hearing on 22-3-2017, the applicants were specifically asked to file any further written submissions, which they have not done. Further, keeping in view the facts as detailed above, we conclude that the applicant is not eligible to approach Settlement Commission based on their own submissions in the application for Settlement and thereafter. Once it is established that applicant is not eligible to approach Settlement Commission, granting anoth....