TaxTMI 
TaxTMI 
2020 (8) TMI 43
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....lly, the differential tax computed for the period December 2008 to March 2009 (Period 1) was a sum of Rs. 19,15,491/-. iii) A second notice dated 09.2.2012 (SCN 2) was thereafter issued calling upon the petitioner to remit differential service tax for the same period as covered in SCN 1, viz. December 2008 to March 2009 (vide Annexure to the SCN) and April 2009 to March 2010 (vide Annexure 1 to the SCN) and in respect of the same two projects. The differential under the Annexure was computed at a figure of Rs. 19,18,375/- and the differential under Annexure 1 was computed at Rs. 9,98,350/-, the total demand being Rs. 29,16,716/-. No month-wise break-up of the demand is available as regards Annexure 1. iv) As against the demand proposed in SCN 1 for an amount of Rs. 1,69,52,423/-, the petitioner had remitted an amount of Rs. 99,94,773/- and the aforesaid deposit/remittance was appropriated in Order -in-Original (OinO 1) dated 30.01.2013 as against the total demand. v) Proceedings under SCN 2 were initiated by a personal hearing dated 28.02.2016, four (4) years after issue of the notice and the petitioner, vide reply 28.03.2016, while objecting to the delay in initiating proc....
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.... of deposit made during enquiry/audit/investigation or pre-deposit made prior to institution of any statutory appeal. xi) The petitioner filed an appeal before the Commissioner of Service Tax (Appeals) challenging OinO 2 as well. Since, according to the petitioner, the demand raised in OinO 2 dated 14.10.2016 was a duplication of the demand already raised under OinO 1, it did not effect the statutory pre-deposit, as a result of which, the appeal was returned as not maintainable. xii) The return of the appeal was challenged by the petitioner in W.P.No.3167 of 2017 and vide order dated 09.02.2017, this Court directed the Appellate Commissioner to consider the claim of the petitioner regarding duplication of demands set out under a representation dated 16.12.2016 and pass orders within a period of two (2) weeks from date of receipt of the Courts' order. This order was not complied with by the revenue. xiii) Since the Legacy Scheme was announced during the pendency of the aforesaid appeal, the petitioner availed of the Scheme in respect of appeal challenging OinO 2 dated 14.10.2016 as well. xiv) The aforesaid narration was captured by the petitioner in the personal hearing prio....
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....of Service Tax (Appeals-II), Newry Towers, 2054, I Block, 2 nd Avenue, 12 th Main Road, Anna Nagar West, Chennai - 600 040 is impleaded suo motu as R2 in this Writ Petition. 6.Mr.Ramasamy, learned Junior Panel Counsel accepts notice for R2 and seeks four (4) weeks' time to obtain instructions and file a counter. 7.A direction is issued to R2 to consider and dispose the representation of the petitioner dated 16.12.2016 after hearing the petitioner, who will appear before him on Tuesday, the 21 st of January, 2020 at 10.30 a.m. without expecting any further notice in this regard. 8.Let necessary orders be passed on the representation within a period of four(4) weeks, i..e, on or before 11.02.2020. List on 12.02.2020 for production of order. Impugned Form SVLDRS -III dated 06.12.2019 is stayed till then 4. In compliance of the direction issued above, R2 disposed the representation of the petitioner vide order dated 27.01.2020. The issue framed for consideration was whether there was a duplication of demand in the two SCNs dated 12.10.2011 and 09.02.2012. In paragraphs 8 to 11, under the caption 'Discussion and Findings', R2 states as follows: Discussion and Findings 8. ....
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....ONTH WISE INCOME AND SHORT PAYMENT OF SERVICE TAX YEAR 2008-09 Xxxxx A.A.O./CREA VIII ANNEXURE I MONTH INCOME RECEIVED AFTER ADJUSTING LAND COST (RS.) INCOME OFFERED FOR SERVICE TAX (RS.) AMOUNT NOT SHOWN IN ST-3 RETURN (RS.) APRIL 08 1,48,00,100/- 1,48,00,100/- ---- MAY 08 5,03,54,000/- 5,03,54,000/- ---- JUNE 08 1,20,70,000/- 1,20,70,000/- ---- JULY 08 3,19,07,325/- 3,19,07,325/- ---- AUGUST 08 2,11,50,000/- 2,11,50,000/- ---- SEPT 08 45,20,000/- 45,20,000/- ---- OCT 08 44,01,500/- 44,01,500 ---- NOV 08 31,20,000 31,20,000/- ---- DEC 08 82,12,500/- Nil 82,12,500/- JAN 09 42,47,500/- 1,95,000/- 40,52,500/- FEB 10 1,52,47,500/- Nil 1,52,47,500/- MAR 10 1,90,50,000/- Nil 1,90,50,000/- TOTAL 18,90,80,425/- 14,25,17,925/- 4,65,62,500/- TAX LIABILITY ON THIS AMOUNT Rs. 19,18,375/- Month Collection reported & offered from service tax-projects wise 2009-10 excluding land cost Total Dayton Heights Marry Land APRIL-09 4200000 0 4200000 MAY-09 2830000 0 2830000 JUNE-09 3600000 3579250 7179250 JULY-09 6770000 916600 7686600 AUGUST-09 3200000 10....
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....ce of any month wise quantification of demand duplication with respect to the amount is not ascertainable. In view of the above, the demand of service tax to the extent of Rs. 19,18,375/- out of the total demand of Rs. 29,16,716/- in the SCN No.20/2012 dated 9.2.2012 is clearly duplicated and the appellant has already paid the same which has also been appropriated in the Order-in-Original No.5/2013 dated 30.01.2013. 5. On the basis of the aforesaid discussion and finding, the order passed by R2 is as follows: ORDER 12. (i) Therefore, I am of the considered opinion that the amount paid by the appellant to the extent of Rs. 19,18,375/- for the period December 2008 to March 2009, which is appropriated by Order-in-Original No.5/2013 dated 30-1-2013, is way above the mandatory 7.5% of the total demand of Rs. 29,16,716/-, raised and confirmed, as required under Section 35F of Central Excise Act, 1944. Hence, the same is to be considered as a pre deposit in terms of Section 35F of the Central Excise Act, 1944, and accordingly the appeal is admitted. (ii) The appellant has apparently filed Declaration under SVLDRS, 2019 in respect of the present appeal, against OIO No.48/2016-17 in S....
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....o the revenue. The provision moreover refers one to the provisions of Section 35 of the Central Excise Act 1944 (CE Act) that governs all matters in regard to a first appeal under service tax law as it would those appeals under central excise law. Section 35(1) specifically states that 'the appellant' shall be heard in deciding the appeal. By comparison, in hearing an appeal by the Tribunal, Section 36 of the CE Act states that the Tribunal shall hear 'the parties to an appeal' in deciding an appeal. 8. Secondly, the direction to R2 to dispose the petitioners' appeal was issued in the presence of the panel counsel for R1and paragraph 7 of my order is specific to the effect that the petitioner shall be heard. If at all the Revenue was of the view that they should also be heard, the panel counsel could well have sought inclusion of the same since the orders were dictated in his presence in open Court. Not having done so, the plea of violation of principles of natural justice cannot be taken now. This ground is misconceived and stands rejected. 9. On merits, clearly, there is an overlap between the period covered under SCN1 and SCN2, the former covering the period December 2008 to ....