TaxTMI 
TaxTMI 
2024 (6) TMI 499
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....ad of "rent received from Garima Arcade" in their balance sheet for the Financial Year 2010-11, 2011-12 and 2012-13 alleging the amount towards rendering the renting of immovable property service that an amount of Rs.21,478/- was found not paid. (iii) The appellant was observed liable to pay service tax under Reverse Charge Mechanism w.e.f. 01.07.2012 pursuant to Notification No.30/2012-ST dated 20.06.2012. However, the amount of Rs.69,887/- was found not paid by the appellant. (iv) The income in the balance sheet was shown from "incentive received, extension warranty commission and unclaimed creditors written off" alleging the said amount towards rendering Business Auxiliary Service that an amount of Rs.3,06,099/- was alleged to have not been paid by the appellant. (v) Amount of Rs.10,400/- in respect of period October 2010 to March 2011 was alleged to be short paid. (vi) The appellant was also observed to have availed the Cenvat credit of input service amounting to Rs.1,24,589/- during the Year 2013-14, the same was alleged to have been wrongly availed. 1.1 Based on the said Spot Memos that the Show Cause Notice No. 5347 dated 10.03.2016 was served upon the appella....
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....SE, Mangalore reported as 2010 (17) STR 281 (Tri-Bang.) (ii) Jaika Motors Limited Vs. CCE, Nagpur reported as 2014 (35) STR 417 (Tri.-Mumbai) 3.1 Pertinently, the appellant's relationship with the finance companies is already within Revenue's knowledge. This is borne out of appellant's letter dated 08.12.2008 in response of Revenue's letter C.No. ST/R-1/GWL/DraftReviewIR/BAS/07-08/1618 dated 21.11.2008. It is submitted that adjudicating authority in the impugned order has misplaced its reliance on Commissioner of Service Tax, Mumbai Vs. Jaybharat Automobiles Limited reported as 2016 (41) STR 311 (Tri.-Mumbai) and Rennaissance Leasing & Finance Private Limited Vs. Commissioner of Customs and Excise, Jaipur reported as 2017 (52) STR 40 (Tri-Delhi). 3.2 It is further submitted that the demand has been raised based on the comparison between the balance sheet and the ST-3 returns. Though the short payment as noticed were not found mentioned in the Books of Accounts of the appellant but the mere failure to declare does not amount to willful suppression. There is nothing on record to prove that the appellant has suppressed those amounts with an intent to evade payment of duty. Re....
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....ntral Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid: Provided that the Central Excise Officer may determine the amount of short payment of service tax or erroneously refunded service tax, if any, which in his opinion has not been paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of "thirty months" referred to in sub-section (1) shall be counted from the date of receipt of such information of payment. Explanation 1- For the removal of doubts, it is hereby declared that the interest under section 75 shall be payable on the amount paid by the person under this sub-section and also on the amount of short payment of service tax or erroneously refunded service tax, if any, as may be determined by the Central Excise Officer, but for this sub-section. Explanation 2.- For the removal of doubts, it is hereby declared that no penalty under any of the provisions of this Act or the rules made thereunder shall be imposed in respect of payment of service-tax....
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....spot memos is held to have been wrongly confirmed. Even the show cause notice is held to be void ab initio with respect to these five spot memos. 9. Coming to the demand mentioned under spot memo no. 4 for an amount of Rs.3,06,099/- as received towards "incentive received, extension warranty commission and unclaimed creditors written off". Department has alleged this amount to be an amount towards rendering 'Business Auxiliary Services'. The order under challenge has confirmed the said demand holding that the amount given by the finance companies to the appellant is not a donation or charity without any quid pro quo, it is on account of referring the customers to the financial institution and the amount in question is a commission against the said reference. The reference is nothing but the promotion of the business of financial companies and as such the amount in question is received for rendering Business Auxiliary Services. The decision of Commissioner of Service Tax, Mumbai Vs. Jaybharat Automobiles Ltd. reported as 2016 (41) STR 311 (Tri-Mum) has been relied upon. 10. From the facts on record, we observe that the appellant has provided the space to the financial institut....
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....evidence produced by the department either in the form of an agreement or in form of any guidelines from the bank or the financial institutes for the basis of giving commission to the appellants, we hold that appellants were not rendering Business Auxiliary Services to the financial institutes/banks. 12. With respect to the amount shown as "unclaimed creditors written off", it is apparent from the appellant's submission that some amount against the sale of accessories to the buyers remains in the account of appellant which is not returned to the customers. The said amount, after certain period of time is recorded as written off in the appellant's record. From no stretch of imagination, the amount received from sale of accessories can be alleged to be an amount towards rendering any kind of service. With these observations, we hold that the demand raised by Spot Memo No.4 for an amount of Rs.3,06,099/- along with the interest has wrongly been confirmed. There is no reason even for imposition of penalty. 13. Coming to the final aspect about invocation of extended period, the department has invoked the same alleging that the appellant had suppressed the amount of short paid serv....