TaxTMI 
TaxTMI 
2024 (4) TMI 907
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....amended from time to time. This amount is held to be recoverable from the party. 2. I do not impose any penalty by invoking Section 80 of the Finance Act, 1994." 2.1 Appellant is registered with the department and is engaged in providing taxable services under the category of Manpower Recruitment Agency, Cargo Handling Services, Maintenance & Repair Service, Construction Services in respect of Commercial or Industrial Buildings and Civil structures, Site Preparation and Clearance, Cleaning Services. 2.2 It was gathered from M/s Hindalco Industries Ltd. Renukoot, Sonebhadra, that in respect of various services received by them from various service providers including appellant, they have made the payments to the service providers during the period 2005-06 to 2009-10. 2.3 On the basis of the information received revenue was of the view that appellant had not paid the service tax, amounting to Rs 12,88,132/- (including cess) during the said period, by suppressing the value of taxable service provided by them. 2.4 A Show Cause Notice dated 22.10.2010 was issued to the appellant asking them to show as to why:- 1. The service tax amounting to Rs. 12,88,132/- (Service Tax Rs. 11....
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....oss objection to the appeal. Therefore, I proceed to dispose off the appeal on the basis of available records. 5. I have carefully gone through the case records. The department has alleged that the appellant suppressed the gross value taxable services provided to M/S Hindalco Ind. Ltd resulting in short payment of service tax amounting to Rs. 12,88,132/-. The thrust of the appeal is that (i) the alleged services was made effective from 16.06.2005 therefore, prior to its insertion the value was not includible in gross value and in case of Tangible Goods supply service, the gross value from 01.04.2005 to 15.05.2008 should be excluded and (ii) The figures informed by M/s Hindalco was inclusive of service tax amounting to Rs 12,88,132/- which should be excluded from the gross turnover. 6. From the perusal of records, I find that the issue was taken up by the adjudicating authority and he referred the matter to the officers of concerned Division. The facts in this regard are evident from the following observation made by the adjudicating authority "To enquire the correctness of the chart submitted by the party the matter was referred to the concerned Division. However the conce....
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.... has been furnished by the appellants to substantiate and establish that they had charged service tax from the service receiver and yet the same was not paid. The appellant have, therefore, no case on this account." 4.4 Order in Original records as follows for confirming the demand made in the show cause notice: "I find from the totality of circumstances that the party is a contractor of M/s Hindalco Industries Ltd., Renukoot, Sonebhadra. The party had provided the service to M/s Hindalco. The party has submitted in their defence reply that they are ready to deposit the service tax, due as per the chart for calculation of tax submitted with the reply. Further, they have requested that being ready to pay the tax and being innocent penalty may please be dropped. I have gone through the records of the case as well as submissions of the party. The party is not contesting that they were engaged in providing the Taxable services as discussed in the show cause notice. They disputed only on the quantification aspect, as they have submitted a different chart regarding value of the taxable liability. To enquire the correctness of the chart submitted by the party the matter was refe....
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....by them. Summary of calculation for tax liability of M/s Sagar Road Lines, Muurdhawa, Renukoot, Sonebhadra Details Amount Amount Gross Turnover as per SCN 1,16,40,263.00 Less PF included in gross turnover 3,76,464.00 Less Threshold Exemption of Rs 4 lacs 4,00,000.00 Less service prior to 16.06.2005 84,17,327.67 Less service tax paid by M/s Hindalco 11,353.82 92,05,145.49 Net taxable turnover 24,35117.51 Service Tax 2,50,817.10 Less service tax already paid as per SCN 0 Less paid on 18.09.2010 for period Jan & Feb 2010 20,404.00 Net tax payable 2,30,413.10 4.6 Adjudicating authority sought for the verification of the calculation chart submitted by the appellant. However as no verification report was received by him he proceeded to adjudicate the matter, rejecting the calculation chart submitted by the appellant. In his appeal before the Commissioner (Appeal), appellant has specifically stated as follows: "11. That it has been alleged that the appellant failed to provide record for verification through divisional office which is incorrect. The chart submitted by the appellant showing t....
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....rvices. The related services which the appellant has provided to M/s Hindalco (Service recipient) from 01.04.2005 to 15.06.2005 and 01.04.2005 to 15.05.2008 towards STGS is excludible from the gross turnover has not been given any cognizance leading to substantial financial loss to the appellant. 3. The Ld Joint Commissioner (Adj) Central Excise, Allahabad has without surmises and conjectures has passed the order whimsically in not accepting appellants submission to exclude quantum of service tax wrongly included in the gross turnover is bad in law and against natural justice. 4. The authority below has ignored his own department's verification report and prejudicially passed an erroneous order which is verifiable from your records, failing which the appellant will not be able to get true justice. 5. ... 6. That the appellant be given an opportunity of personal hearing in the matter before passing an order." 4.7 The relevant extract of the show cause notice is reproduced below: "Whereas from the details provided by the M/s Hindalco Ind Ltd., it appears that the party have received a total of Rs 1,16,40,263/- as gross value of taxable services against services provided to....
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.... Gross Value given by HI Amount of PF and Bonus for which demand already has been raised Amount of service tax in gross value Gross value as shown by party Amount on which service tax has not been paid Due service tax to be paid S Tax E Cess & Hed. Cess 2005-06 3218244 47842 0 0 3170402 317040 6341 0 2006-07 2845991 116923 0 0 2729068 327488 6550 0 2007-08 2170142 89039 0 0 2081103 249732 4995 2497 2008-09 1781340 66899 0 0 1714441 205733 4115 2057 2009-10 1624546 55761 0 0 1568785 156879 3138 1569 Total 11640263 376464 0 0 11263799 1256872 25137 6123" 4.8 We find from the above that the demand has been made in the present case, on a taxable value of Rs 1,12,63,799/- after allowing the deduction from the Gross Value towards the Provident Fund and Bonus. Appellant has claimed deduction on account of the threshold exemption of Rs 4 lakhs, without establishing that the same is admissible to them by providing the details of their turnover for the past ye....
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....findings on this issue. 4.10 Apart from raising the issue of determination of the taxable value for making the demand, appellant has before the adjudicating authority accepted his liability towards the payment of service tax on the re-determined value as per the chart submitted. Thus in respect of the value other than the value of Rs 84,17,327.67 for which we are remanding the matter to the original authority the demand needs to be upheld. 4.11 Appellant has before the adjudicating authority, pleaded ignorance of law, and had claimed waiver from penalty. Acting on the submissions made by the appellant, adjudicating authority has noting the fact that appellant is un-educated and out of ignorance failed to pay the service tax, extended the benefit of Section 80 of the Finance Act, 1994 and did not imposed any penalty on the appellant under Section 76, 77 & 78 as were proposed in the show cause notice. 4.12 In case of Systems & Components Pvt. Ltd [2004 (165) E.L.T. 136 (S.C.)] Hon'ble Supreme Court has held as follows: 5. ..... Once it is an admitted position by the party itself, that these are parts of a Chilling Plant and the concerned party does not even dispute that they ha....
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.... an end to litigation and the other principle is 'nemo debet his ve ari, si constet curiae quod sit pro un aet eademn cause' meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of Res Judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should forever set the controversy at rest. 15. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ens....
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....he rule of Res Judicata was first introduced by Section 16 of the Bengal Regulation, III of 1973 which prohibited the Zilla and City Courts from entertaining any cause which, from the production of a former decree or the record of the Court, appears to have been heard and determined by any Judge or any Superintendent of a Court having competent jurisdiction. The learned Judge found that the earliest legislative attempt at codification of the law on the subject was made in 1859, when the first Civil Procedure Code was enacted, whereunder Section 2 of the Code barred every Court from taking cognizance of suits which, on the same cause of action, have been heard and determined by a Court of competent jurisdiction. The learned Judge opined, and in our view rightly, that this was partial recognition of the English rule in so far as it embodied the principles relating to Estoppel by judgment or Estoppel by record. 18. Thereafter, when the Code was again revised in 1877, the operation of the rule was extended in Section 13 and the bar was no longer confined to the retrial of a dispute relating to the same cause of action but the prohibition was extended against reagitating an issue, whi....
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....derations of fair play and justice, vide : Daryao v. State of U.P., 1962-1 SCR 575; (AIR 1961 SC 1457)." 23. This Court in All India Manufacturers Organisation (supra) explained in clear terms that principle behind the doctrine of Res Judicata is to prevent an abuse of the process of Court. 24. In explaining the said principle the Bench in All India Manufacturers Organisation (supra) relied on the following formulation of Lord Justice Somervell in Greenhalgh v. Mallard - (1947) 2 All ER 255 (CA) : "I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them." 25. The Bench also noted that the judgment of the Court of Appeal in "Greenhalgh" was approved by this Court in State of U.P. v. Nawab Hussain - (1977) 2 SCC 806 at page 809, para 4. 26. Following all these principles a Constitution Ben....