2018 (8) TMI 1458

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....y Two Only) for the taxable service of "Supply of Tangible Goods Service" / "Declared Service" rendered by the Noticee during the period 16.05.2008 to 31.3.2013 as per proviso to Section 73(1) of the Finance Act, 1994. 2. I confirm the demand of Rs. 1,77,723 (Rupees One Lakhs Seventy Seven Thousand Seven Hundred and Twenty Three only) towards the additional consideration received on account of receipt of HSD at concessional rate during the period 16.05.2008 to 31.03.2013 as per proviso to Section 73(1) of the Finance Act, 1994. 3. I appropriate the amount of Rs. 90,27,295/- towards the above said liability from the amount of Rs. 92,48,593/- voluntarily deposited by the noticee. 4. I demand interest at the appropriate rate under Sec....

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....so had not filed any service tax returns. It was also found that though Appellant have received huge payments from KMM, they have not issued any invoices in respect of the services provided by them to KMM. Thus Appellants have evaded the service tax by not remitting the entire service tax collected from clients into government account and also by not charging and collecting the service tax and also by suppressing the taxable value received. During the course of investigations statement of Shri Louis Rodrigues was recorded and various documents such as "Statement of Machinery Working Hours" prepared by the Appellants scrutinized and it was found that during the period Appellant had received a gross amount of Rs. 8,05,22,947/- by deploying th....

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....that Service tax cannot be demanded on the actual value of such HSD so supplied. 4.0 Have heard Shri R K Tomar, Advocate for the Appellant and Shri M Suresh Deputy Commissioner (Authorized Representative) for the revenue. 5.0 Shri R K Tomar submitted on the behalf of Appellant that- • As far as issue of levying service tax on the supply of HSD at concessional rate by the recipient is concerned the matter is no longer res integra. Issue has been decided against inclusion of such charges for computation of tax liability in case of Bhayana Builders (P) Ltd. Vs Commissioner of Service Tax Delhi [2013 (32) STR 49 (T-LB)]; • In case of Supplies made to KMM, they had not paid any service tax for the reason that they....

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.... the same with the Government Account, in manner provided. Since they were actually collecting these amounts and not paying to the government account, definitely they have breached the trust imposed on them and hence will deserve no leniency; • In case of KMM it is fact that they had been receiving huge sums of money in respect of the services provided by them to KMM, non preparation of invoice in respect of the amounts being so received cannot be a justification for nonpayment of Service Tax. By non payment of tax and not filing the returns as provided for by the Service Tax Rules, 1994 Appellants have suppressed the information in respect of taxable services from the department and hence extended period of limitation as provi....

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....als they have charged taxable value on the basis of the "statement of machinery working hours" after deducting the TDS and HSD supplied at concessional rate. Thus, the liability of payment of service tax is not in dispute and accordingly I hold that the Noticee is liable to pay Service Tax of Rs. 88,49,572/- on the gross payment of Rs. 8,05,22,947/- received by them during the period May 2008 to March 2013." 8.0 Objections raised by the appellant in respect of quantification, i.e. for allowing them the benefit of cum tax value as gross value cannot be sustained in view of the Apex Court decision in case of Amrit Agro Industries Ltd wherein it has been held - "In our view, the above judgments in the case of Maruti Udyog Ltd. and Sricha....

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....f duty element from the price for determination of value under section 4(4)(d)(ii) will arise." 9.0 Second issue raised in respect of invocation of extended period too cannot be allowed, for the reason that in case of clients other than KMM they were raising invoices for receiving the payment in respect of the services provided. Also they were in all such cases collecting the Service Tax from their client but were not depositing the same with government account. In case of KMM just because service recipient had instructed them not to raise the invoices cannot be justifiable reason for not raising the invoices in respect of the supply of services as provided in law more so when they were receiving huge payments against such supply from KM....