TaxTMI 
TaxTMI 
2024 (4) TMI 225
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....firmed demand of service tax, in terms of provisions of Section 75 of the Finance Act, 1994; 3. I impose penalty of Rs.27,37,938/- [Rupees twenty seven lakh thirty seven thousands nine hundred thirty eight only] upon the said party under the provisions of Section 78 of the Finance Act, 1994; 4. I also impose penalty of Rs.10,000/- [Rupees Ten Thousand only] upon the said party under the provisions of Section 77(2) of the Finance Act, 1994." 2.1 The Appellant is engaged in the manufacture and import of various electronics goods such as refrigerators, colour televisions etc. The Appellant is registered with the central excise department and its central excise registration no. is AAACS5123KXM001 2.2. The Appellant appointed three agencies viz. M/s. White House, M/s Keen Sighted and M/s Superwell Services for supplying housekeeping services. They entered into a House keeping services agreement. 2.3 The scope of the services to be performed by the Service Providers, is as follows: a. Cleaning and dusting of the entire office areas, all its furniture, fixtures, equipment and accessories; b. Cleaning, sweeping and weeping of all the floors incl....
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.... Cess & SHEd. Cess) amounting to Rs 27,37,938/- (being Service Tax not paid during the year 2012-13 & 2013-14 on the manpower service/housekeeping service received from individual service provider under reverse charge mechanism) should not be demanded and recovered from them under proviso to Section 73 (1) of the Finance Act, 1994. b) Interest at appropriate rate should not be demanded and recovered from them under Section 75 of the Finance Act, 1994. c) Penalty should not be imposed upon them under Section 78 of the Finance Act, 1994 for their various acts of omission and commission, as mentioned in the preceding paras. d) Penalty should not be imposed upon them under the provision of Section 77(2) of the Finance Act'1994 for violation of provisions of Section 70 of the Finance Act, 1994 read with Rule 7 of the Service Tax Rules, 1994." 2.7 The show cause notice has been adjudicated as per the Order-in-Original referred in para-1 above. 2.8 Aggrieved appellant have filed appeal before Commissioner (Appeals), who dismissed the appeal of the appellant as per the impugned order. 2.9 Hence, this appeal. 3.1 We have heard Shri Atul Gupta, Advocate for ....
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....ther reference : - 4.4 On perusal of these invoices it is evident that the service provider is a registered service provider, registered with the department and has issued the invoices to the appellant indicating the amount of service tax, educations cess and higher education-cess. In the education guide issued by the revenue following has been stated : "10.1.2 What does a service provider need to indicate on the invoice when he is liable to pay only a part of the liability under the partial reverse charge mechanism? The service provider shall issue an invoice complying with Rule 4A of the Service Tax Rules 1994. Thus the invoice shall indicate the name, address and the registration number of the service provider; the name and address of the person receiving taxable service; the description and value of taxable service provided or agreed to be provided; and the service tax payable thereon. As per clause (iv) of sub-rule (1) of the said rule 4A „the service tax payable thereon‟ has to be indicated. The service tax payable would include service tax payable by the service provider." 4.5 Appellant, while making the payment have made the entire tax am....
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....It is a settled law that re-classification of the services cannot be done at the recipient's end......" 4.6 Reverse charge mechanism under Service Tax was introduced w.e.f 01-01-2005 vide Notification No. 36/2004-ST and with effect from 01-07-2012 a new mechanism of reverse charge (RCM) and partial reverse charge or we can call it joint charge (PRCM/JCM) was introduced vide Notification No. 30/2012-ST which was further amended by Notification No. 45/2012-ST, 10/2014-ST and 7/2015-ST. Power was drawn from Section 68(2) of Finance Act, 1994, to mainly ensure more tax compliance as it was difficult to collect service tax from various unorganized sectors. In any case this is not for charging taxes twice on the same transaction. Board has circular No 51/13/2002-ST dated 07.01.2003 clarified as follows: "2. The matter has been examined in the Board. It is hereby clarified that any service (transaction) can be taxed only once, even if it appears to fall under two or more categories. Therefore, before levying service tax it is essential to determine under which category a particular service falls. It should be kept in mind that service tax is a tax on the service provided and i....
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....) ] ".....In terms of Section 67, the entire amount collected from the customers for rendering courier service is subject to tax at the hands of agent/franchisee. In our view, if a service falls under two heads, there is no provision in the Finance Act, 1994 to tax the very same service charges twice under two heads. In this case, what was done is double assessment on part of the service charges collected, for rendering courier service at the hands of the appellant...." Geeta Industries P Ltd [2011 (22) STR 293 (T-Del)] "4. There is no dispute that service in question has suffered tax. The only dispute is the person who shall pay the service tax. When the treasury has not been affected by virtue of collection of service tax from the service provider as is the case of the Revenue and there is no legal infirmity in the decision of the learned Commissioner (Appeals) there cannot be double taxation of same service. But it is fact that realization of the service tax has been made from the service provider while the recipient of service of GTA has liability under the law. Finding no loss of revenue, as has been held by the learned Commissioner (Appeals), Revenu....