TaxTMI 
TaxTMI 
2024 (4) TMI 907
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.... provisions of section 75 of the Finance act, 1994 as 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:- ....
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....ded to the appellant but neither he turned up nor made any request for adjournment. From the respondent department, neither anybody appeared on the date of hearing nor filed cross 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 foll....
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....ion 67 (2) of the Finance Act, 1994, the component of service tax shall get excluded only and only if the gross amount charged by the service provider is inclusive of service tax payable. Nothing whatsoever 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 notic....
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....al authority while admitting his liability to pay the service tax, appellant had submitted the calculation chart as follow, seeking re-quantification of demand. Appellant submitted that the they are ready to pay the service tax due on the basis of quantification given 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, ....
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.... there was reasonable cause for the said failure. Ground of Appeal 1. Thus the authority below has not gone through the details produced before during course of proceedings in the matter of which appellant may incur an irreparable loss. 2. That the authority below has grossly erred in not accepting the appellant contention of excluding the value of services prior to insertion of the services. 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 appell....
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....value with intent to evade payment of Service Tax. These facts came to the knowledge of department only after getting information in this regard from M/s Hinadalco Industries Ltd., Renukoot on specific query. Thus the provisions as contained in proviso to section 73 (1) is invokable and the demand is extended for the period of last five years. By doing so, they have also made themselves liable for penalty under Section 78 of the Act. Annexure B Period 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 2009-1....
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....tax was leviable on the services which were specified as taxable service. The coverage of the services under the category of taxable service was gradually widened, every year. Appellants have claimed that the major chunk of the services provided by them were within this category and specified as taxable service only from 16.05.2008. As no finding has been rendered by the adjudicating authority or the first appellate authority on this aspect, while adjudicating the case, the matter needs to be remanded back to the original authority for recording specific 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 ....
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....hit by the principles of Res-judicata. In case of M. Nagabhushana [2011 (271) E.L.T. 481 (S.C.)] Hon'ble Apex Court observed a s follows: "13. It is obvious that such a litigative adventure by the present appellant is clearly against the principles of Res Judicata as well as principles of Constructive Res Judicata and principles analogous thereto. 14. The principles of Res Judicata are of universal application as it is based on two age old principles, namely, 'interest reipublicae ut sit finis litium' which means that it is in the interest of the State that there should be 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 ....
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....a" or "Amar Mania taqrir mukhalif." Under Roman Law, as administered by the Proetors' Courts, a defendant could repel the plaintiff's claim by means of 'exceptio rei judicatoe" or plea of former judgment. The subject received considerable attention at the hands of Roman jurists and as stated in Roby's Roman Private Law (Vol. II, page 338) the general principle recognised was that "one suit and one decision was enough for any single dispute" and that "a matter once brought to trial should not be tried except, of course, by way of appeal". (Page 391-392 of the report) 17. The learned Judge also noted that in British India the 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 ....
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....a citizen should be allowed to challenge the validity of the same order by successive petitions under Art. 226 cannot be answered merely in the light of the significance and importance of the citizens' fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations 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 (....
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....petition, the dispute was confined only to the calculation of interest as is clear form the order dated 2-8-2004 itself which specifically referred to the averments made in Paragraphs 6 and 7. These paragraphs have already been extracted above. In Paragraph 6 particularly, Respondent No. 1 made some remarks about the calculation of the interest and had stated that it needed re-calculation. Therefore, after the dismissal of the said writ petition as withdrawn, the only issue that remains for consideration was how much interest is payable and the correct calculations thereof. It is a matter of record which flows from the correspondence exchanged thereafter between the parties that insofar as Department is concerned, it only re-worked the amount of interest and demanded interest in the sum of Rs. 4,67,02,251/- after reducing the figure from 8,43,62,504/- because of the reasons already stated above. 12. Consequently in the second writ petition, when the appellant as well as its counsel knew that the issue as to whether the interest is payable or not on other grounds had already been foreclosed in the earlier writ petition, the counsel for the appellant did not make any submiss....