TaxTMI 
TaxTMI 
2019 (5) TMI 225
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.... cause notice dt. 20.04.2010 was issued to appellants inter alia, proposing demand of Rs. 1,29,66,601/-, appropriation of the amount of Rs. 25,17,440/- paid by the appellants and imposed penalties under various provisions of law. In adjudication, the lower authority vide impugned order dt. 28.03.2012 confirmed the proposals in the SCN and imposed equal penalty of Rs. 1,29,66,601/- under Section 78 of the Finance Act, 1994 and also imposed penalty under Section 76 ibid. He also imposed penalty of Rs. 5000/- under Section 77 ibid. Hence this appeal. 3.1 When the matter came up for hearing, on behalf of the appellant, Ld. Advocate Shri M. Masilamani made oral and written submissions which are broadly summarized as under: (i) The allegation in para 2 of Show Cause Notice that no Service Tax has been paid from Oct 2004 to April 2008 and from January 2009 to March 2009 is totally not correct since the Service Tax was paid and ST-3 return filed as detailed below :- a. Copy of ST-3 filed for April-September 2008-09 b. -do- for October-March 2008-09 c. -do- for April-September 2009-10 d. -do- for October-March 2009-10 For the period from October 2004 to 23.8.2007 they are not ....
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.... amount already paid to the department the balance liable to be demanded is Rs. 15,04,421/- which is time barred (details already given in ground No. iii above). (vii) The audit group sent an audit para 1 to the Superintendent group III and in turn Superintendent addressed to them in his letter dated 26.3.2010 (copy of letter and audit para enclosed) wherein the audit group has said that they have taken the liability of tax from the profit and loss account / balance sheet figures of the firm for the years 2004-05 to 2008-09 and after detecting the service tax paid by them the differential service tax works out to Rs. 1,04,49,161/- whereas in the SCN issued on 20.4.2010 they have demanded in para 8 (i) at page 5 of SCN a sum of Rs. 1,29,66,601/- which is fully incorrect and thus the above SCN is incorrect and erroneous deserves to be set aside. 3.2 Ld. Advocate submitted a copy of letter dt. 07.03.2012 addressed by him to the Commissioner of Customs, Chennai-I wherein duty liability would be only amount of Rs. 15,04,421/- as under : "We submit that as per para 3.1 and 3.2 of the SCN at pp 1& 2 of SCN value was shows as Rs. 11,05,48,282/- to work out Service Tax payable is erron....
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....t non payment cannot prove this allegation - knowledge that tax was payable but still not paid is essential - penalty not imposable section 78 of Finance Act, 1994. (vi) SHREE UMA FOUNDATION PVT. LTD. Vs Commissioner of C.Ex Kolkata-II-2009 (15) S.T.R. 758 (Tri. Kolkata) wherein it was held SCN - limitation - belated issuance appellant cannot be charged belatedly - audit cannot recommend a levy nor can suggest interpretation of law leading to absurd results - impugned order set aside. (vii) MAD ENTERTAINMENT LTD Vs Commissioner of C.Ex Mumbai 2007 (7) S.T.R.521 (Tri. Mumbai) (copy enclosed) wherein it was held charge of suppression of facts with intent to evade not sustainable as the SCN is hit by time bar. 3.4 We also point out that a sub contractor is not liable to pay service tax from 2004 to 23.8.2007 and they have enclosed a copy of certificate issued to them to prove that they are subcontractors and there is no liability of service tax payable by them and in this connection they rely upon the following judgments : (a) SUNIL HI-TECH ENGINEERING LTD Vs Commissioner of Central Excise Nagpur - 2010 (17) S.T.R.121 (Tri. Mumbai) wherein it was held that sub contractor....
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....12/- and another excess amount of Rs. 7,65,665/- during 2008-09, all the three totaling to Rs. 70,79,737/- was wrongly included in the SCN; that if this excess was deducted, the correct taxable value works out to Rs. 10,34,68,545/-; that after allowing abatement of 67% to Rs. 3,41,44,620/- and corresponding service tax payable would be Rs. 42,78,979/-; that since they have already discharged tax liability of Rs. 27,74,558/- during February 2008 to March 2009, the balance service tax liability would be only amount of Rs. 15,04,421/- which is hit by time bar. We find that the adjudicating Commissioner has fleetingly referred to these contentions in para-19 of the impugned order. However, on both the claims relating to services rendered to SEZ as well as claim of abatement, the adjudicating authority has held that no documentary evidence have been produced by the assessee in support of the said contentions. 6. Ld. Consultant has submitted that they would produce all necessary proof and evidence in respect of the above contentions if one more opportunity is given, before the adjudicating authority. We consider this prayer to be a just one. In the circumstances, the matter is remanded ....