TaxTMI 
TaxTMI 
2025 (7) TMI 219
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....he Commissioner of Central Excise, Bolpur. A Cross Objection bearing Service Tax Cross Objection No. 75357 of 2016 has also been filed by M/s. Eastern India Enterprise against the grounds taken by the Revenue in their appeal. 1.2. As both these appeals and the cross objection relates to the same Order-in-Original, all are taken up together for decision by a common order. 2. The facts of the case are that M/s. Eastern India Enterprise, Andua, Jangipur, P.O. Beniagram, Farakka Barrage, District: Murshidabad (W.B.), is a registered Service Tax assessee, having Service Tax Registration No. ASEPS1540FST001. They have taken registration for providing maintenance and repair service, as defined under Section 65(105)(zzg) of the Finance Act, 1994. 2.1. During the course of scrutiny of the records and documents of the assessee for the period 2009-10 to 2012-13, it was seen that there was alleged short payment of Service Tax by the said assessee during the material period. Accordingly, Service Tax liability was ascertained from their balance sheets, profit & loss a/c and ST-3 returns while the Service Tax payment made was determined from the ST-3 returns, GAR-7 challans as well as NS....
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....e appeal bearing Service Tax Appeal No. 75401 of 2016 against decision of the ld. adjudicating authority in the impugned order wherein he has allowed "exclusion of Bill amount of Rs. 1,78,79,098/- pertaining to 2009-10 Rs. 1,69,57,052/- pertaining to 2011-12 and Rs.1,42,52,358/- pertaining to 2012-13 from the taxable value accepting the assessee's claim of the said amounts being towards provision of 'Road Construction Services' under CSR Scheme. The assessee has filed a cross-objection against the grounds taken by the Revenue in the said appeal. 3. The Ld. Counsel appearing on behalf of the assessee submits that they have made excess payment of service tax, which has been accepted by the Commissioner in the 'Discussion and Findings' portion of the impugned order. However, he submits that the ld. adjudicating authority has adjusted part of the excess paid amount against their service tax liability and failed to adjust the remaining amount paid in excess against the balance liability confirmed in the impugned order. 3.1. In this regard, the assessee referred to the specific findings of the ld. adjudicating authority and submitted that in the impugned order, the Ld. ....
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....her submitted by the assessee that the Ld. Commissioner has confirmed the service tax of Rs.10,53,786/- for the year 2009-10 and appropriated the same from excess deposit of service tax in 2010-11 and has also ordered for payment of interest by the assessee on the above amount to be determined by the divisional Assistant Commissioner of Service Tax. The assessee submits in this regard that the Show Cause Notice covering the demand for the periods 2009-10 and 2010-11 was issued on 23.09.2014, by invoking the extended period of limitation; that it is on record that the assessee has been registered with the department, paying service tax and filed returns regularly. Thus, it is their plea that short levy if any, needs to be raised within the normal period of limitation. Accordingly, it is the contention of the assessee that the demands confirmed by invoking the extended period of limitation is not sustainable and hence the demands confirmed in the impugned order for the year 2009- 10 is liable to be set aside. In view of this submission, it is also stated by the assessee that the question of adjustment of the demand for this period along with interest, does not arise. 3.4.1. Regard....
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....ssioner should have considered that the assessee paid excess service tax, barring short payment in 2009-10 but made good in 2010-11. 3.6.3. Thus, the assessee prayed for waiver of all penalties imposed on them, by invoking the provisions of Section 80 of the Finance Act, 1994, applicable during the relevant period. 4. Regarding the appeal filed by the assessee, the Ld. Authorized Representative of the Revenue reiterated the respective findings of the adjudicating authority in the impugned order. 4.1. With regard to the appeal filed by the Revenue, the Ld. Authorized Representative of the Revenue reiterated the points raised by the Revenue in their Grounds of Appeal, which are as follows: - a. While in the SCN it was alleged by the department that the assessee had provided Maintenance & Repair Service during the period 2009-10 to 2012-13, the assessee pleaded in their defence that besides 'Maintenance & Repair Service they had also provided 'Construction/Works Contract Service' during the said period and a portion of which is not taxable and thus, non excludable in their taxable value. Accordingly, the Adjudicating Authority allowed exclusion of Bill am....
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.... the said financial years were Rs. 6,00,85,295/- & Rs.4,52,33,879/- respectively, on the ground that there was no corroborative evidence in the SCN in support of said Rs.12,56,13,910/- & Rs. 7,95,93,521/-tabulated in Annexure-1 to the SCN. It appears that while determining the tax liability of the assessee, the Adjudicating Authority has excluded the value of service, claimed to be related to 'Road Construction Services, on the basis of Chartered Accountant's Certificate submitted by them. There is no discussion in the order that the Adjudicating Authority has examined base records i.c., relevant work orders/agreements of said "Road Construction Services', in order to make sure that the said amounts were truly related to exempted Road Construction Service or not. It thus, appears that the instant order is not properly reasoned. d. Besides above, the adjudicating authority determined the tax liability of the assessee for the financial year of 2012-13 to be Rs 55,35.736/- in the order-in-original, whereas as per NSDL database the assessee paid Rs.58.01.021/-. This shows that the assessee made an excess payment of Rs. 2,65,285/-, though the said amount has erroneo....
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....) Point nos. 2,3,4,5,687:- the said Noticee has not quantified the amount of taxable service for 2009- 2010, but has claimed that the taxable amount for 2011-2012 and 2012-2013 should be Rs.6,00,05,295/- and Rs. 4,52.33,879/- respectively contradicting the amount of Rs, 13,85,52,142/-and Rs. 8,94,31,281/- as mentioned in the SCN. I am now discussing the taxable amount year - wise : - (i) 2009-2010:- Though the taxable amount for the year has not been quantified in the reply dated 21.12.2015 of the said Noticee, the Chartered Accountant in his certificate dated 28.12.2015 has shown the break-up of Rs. 3,55,39,746/- which implies that this amount has been accepted by the said Noticee for 2009-2010. After carefully considering the Balance Sheet and the certificate, I hold that during 2009-2010, the following amounts are excludible while computing the taxable amount for the year - (A) bill amount of Rs. 32,80,000/- towards refund of Security Deposit since no service is involved in relation to this amount, rather deposit of security and refund of the same is a traditional official procedure for any contractor, (B) bill amount of Rs. 1,78,79,098/- as road was constructe....
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....,00,85,295/- out of which service tax is payable on Rs. 5,44,74,428/- on which service tax comes to Rs. 56, 10,866/- Since Rs. 67,21,504/-was paid as service tax, there was excess payment of Rs. 11,10,638/-. In the absence of any corroborative evidence in support of Annexure - I to the SCN, I am relying on the Balance Sheet and Profit & Loss Account of M/s. Eastern India Enterprise (the said Noticee) as well as the certificate. As per Balance Sheet and Profit & Loss Account, the gross bill received during the year2011-2012 is Rs. 7,74,11,692/- The Chartered Accountant has certified that among others this amount includes (A) refund of Earnest Money of Rs. 3,69,345/-, (B) bill for road construction under CSR Scheme amounting to Rs. 1,69,57,052/-1 hold that no service tax is leviable on this amount since no service is involved in relation to this amount, rather deposit of earnest money and refund of the same is a traditional official procedure. Similarly, the bill amount of Rs. 1,69,57,052/-is also excludible since road was constructed under CSR Scheme and construction of road is not taxable for the reason stated supra. I, therefore, hold that during 2011-2012, the bill amount to be c....
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....amount of Rs 4,47,87,511/- Service Tax on this amount comes to Rs. 53,74,501/-, E Cess of Rs. 1.07,490/- and S. & HE. Cess of Rs. 53,745/- totaling Rs. 55,35,736/-. As per NSDL Database, the said Noticee paid Rs. 58,01,021/- towards service tax during the material period. In view of this situation, I find that there was short-payment of service tax to the tune of Rs. 2,65,285/-during 2012-2013. (c) Point No. 8:- As regards invocation of extended period of limitation for raising the demand under section 73(1) of the said Act, I hold that the said Noticee never provided the actual facts and figures in their statutory documents. Had the fact not been detected by the department through audit and further investigations, the said assessee would have continued to evade payment of service tax in such manner. This substantiates that there was suppression of facts on the part of the said Noticee with the intent to evade payment of service tax as actual amount of taxable service was not provided to the department in due course So, section 73(1) of the said Act has been rightly invoked in the instant SCN (d) Point No. 9:- As regards penal action under sections 77 and 78 of th....
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....r, after adjusting the service tax liability of Rs.10,53,786/- for 2009-10 and Rs.2,65,285/- for 2012-13, there still remains an excess payment of Rs. Rs.22,37,334/- (Rs. 24,45,768/- + Rs. 11,10,637/-) - (Rs. 10,53,786/ + Rs. 2,65,285/)] at the end of 2012-13, as submitted by the assessee. Thus, we are of the opinion that the ld. adjudicating authority was required to refund the excess amount paid by the assessee, after adjustment of the tax liabilities, after examining the issue of unjust enrichment. 7.3. Accordingly, we hold that the Service Tax of Rs.13,19,071/- (Rs.10,53,786/- + Rs.2,65,285/-), being the short payments made by the appellant/assessee for the periods 2009-10 and 2012- 13, is payable by the appellant, along with applicable interest, which is required to be adjusted against the excess payment made by them as above. 7.4. However, with regard to the assessee's claim for refund of the excess payment made by them, we are of the opinion that the issue needs to be remanded back to the adjudicating authority to verify the unjust enrichment angle as well as the correctness of the claim made by the assessee regarding excess payment, before refund of the excess amount,....