2019 (6) TMI 1024

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.....2014 was issued alleging that the appellant had not declared actual amount realized under the category of 'Business Auxiliary Service' (here-in-after referred to as the said service), in their ST-3 returns in comparison with Balance Sheet for the period 2009-10 to 2011-12 and thus short paid Service Tax of Rs. 5,05,336/- and also wrongly availed and utilized Cenvat Credit amounting to Rs. 4,88,190/- during 2009-10. The SCN demanded Service Tax and CENVAT Credit along with applicable interest. It also proposed penalty under Section 77 & 78 of the Finance Act, 1994 (here-in-after referred to as the said Act) and penalty under Rule 15(3) of the CENVAT Credit Rules, 2004 read with Section 78 of the said Act. 2. Relying upon the provisions o....

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....oner, BBD Bag-II Division, Service Tax-I Commissionerate, Kolkata to file appeal on the following grounds as stated below: i) The adjudicating authority has recalculated the demand in respect of the year 2011-12 by considering that the Service Tax for the said period was payable on Receipt basis and not on Billing basis as per the provisions of sub-rule (1) of Rule 6 of the Service Tax Rules (STR), 1994 as amended vide the Service Tax (Amendment) rules, 2012 and has reduced the same to Rs. 7,455/- in place of Rs. 4,91,212/- as determined in the SCN. The adjudicating authority has failed to take into account the fact that the said amendment in Rule 6(1) of the STR was effective from 01/04/2012 while in the instant case the demand un....

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....appearing on behalf of the appellants submitted that for the period 2011-12, demand has been raised considering opening debtors and bill raised during the period 2011-12 which is evident from Annexure 'A' of the Show Cause Notice. He submits that point of Taxation Rules, 2011 was introduced with effect from 01.04.2011. 6. The Ld. Consultant further submitted that Rule 9 of the point of Taxation Rules, 2011 - "Transitional provision", provides an option to taxpayer to pay tax on receipt basis where provision of services is completed on or before 30th day of June, 2011 or where the invoices are issued upto the 30th day of June, 2011. Accordingly, the appellant exercising this option had paid tax on receipt basis for the invoices issued upt....

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....ansitional provision would be applicable in the instant case. He also submitted copy of TRU letter bearing No.F. No.341/34/2010-TRU and requested the Bench to go through point 13 of the said TRU letter. Relevant text of the point is reproduced below : "13. It is further clarified that the transitional provisions will apply to all invoices issued before 31.03.2011 in so far as taxpayers who switch over to the new rules on 01.04.2011. Those assesses who like to shift to the new rules on 01.07.2011 would have similar protection in respect of invoices issued before the date they switch over to the new rules. The benefit has also been extended to services when provision has been completed before 01.04.2011 or 01.07.2011, as the case may....