TaxTMI 
TaxTMI 
2025 (10) TMI 493
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.... Service Tax Registration No. AACCK3286HSD001. 2.3 During the course of an audit conducted by the department in 2019 and upon scrutiny of documents, Annual Financial reports for the years 2015- 16 to 2017-18 submitted by the appellants on 27.01.2021 and 15.03.2021, it was found by the department that the appellants had paid service tax of Rs.41,57,265/- i.e. Rs.7,40,160/- for the period April, 2017 to June, 2017; Rs.34,17,105/- for the period July, 2017 to March, 2018 in respect of the advances received from their customers for the year 2015-2016 and 2016- 2017 (up to June, 2017). However, the department had interpreted that the service tax liability towards advances received against booking of the flats by the customers have not been correctly reflected in the ST-3 returns filed by the appellants and correct amount of service tax in respect of taxable services have not been paid by the appellants. Further, it was also found that the appellants had filed the ST-3 returns belatedly. Therefore, the department on the basis of above detailed scrutiny had issued show cause notice dated 19.04.2021, demanding service tax on various amounts of advances received by the appellants under S....
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....uthorized Representative (AR) appearing for Revenue reiterated the findings in the impugned order. He further submitted that since the appellants did not indicate the details of tax payment correctly in ST-3 return, they did not properly discharge the service tax dues. Therefore, learned AR claimed that the impugned order is sustainable and prayed that the appeal filed by the appellants be set aside. 5. Heard both sides and perused the records of the case. 6. The issue for consideration before the Tribunal in the present case is to determine whether service tax which is liable to be paid on taxable service of construction of flats/residential complex have been paid in discharge of the service tax liability in terms of the provisions of the Finance Act, 1994. 7. In order to appreciate the issues under dispute, the specific legal provisions of the Finance Act, 1994 relevant to the dispute are extracted and herein given below for ease of reference: Chapter V of the Finance Act, 1994 "Section 65. Definitions In this Chapter, unless the context otherwise requires, - (30a) "construction of complex" means- (a) construction of a new res....
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.... "3 . (1) A manufacturer or producer of final products or a provider of output service shall be allowed to take credit (hereinafter referred to as the CENVAT credit) of- (i) the duty of excise specified in the First Schedule to the Excise Tariff Act, leviable under the Excise Act:... ...... (ix) the service tax leviable under section 66 of the Finance Act; (ixa) the service tax leviable under section 66A of the Finance Act; (ixb) the service tax leviable under section 66B of the Finance Act;...... paid on- (i) any input or capital goods received in the factory of manufacture of final product or by the provider of output service on or after the 10th day of September, 2004; and (ii) any input service received by the manufacturer of final product or by the provider of output services on or after the 10th day of September, 2004,..... Recovery of CENVAT credit wrongly taken or erroneously refunded. 14. (1) (i) Where the CENVAT credit has been taken wrongly but not utilised, the same shall be recovered from the manufacturer or the provider of output service, as the case may be, and the provi....
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....erms and conditions mentioned in the Cenvat Credit Rules, 2004. The assessee shall maintain proper records for the receipt and consumption of the input service in which relevant information regarding the value, tax paid, cenvat credit taken and utilized, the person from whom the input service has been procured is recorded on the burden of proof regarding the admissibility of the cenvat credit shall lie upon the provider of output service taking such credit. No such record has been produced by the noticee to establish their claim. Mere possession of input service invoices does not entitle any assessee to claim and adjust the cenvat credit involved in them for their imminent tax liability. The invoices need to be recorded not only in the books of accounts, but also in to records to be maintained as prescribed in Rule 9 of the Cenvat Credit Rules, 2004. The availment and utilization of the same is also required to be reflected into the returns for the relevant period to be filed before the Department. The noticee submitted that they had produced the Cenvat credit statements along with each Cenvat credit bill for which the notice has merely submitted Cenvat credit statement which is ne....
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.... Credit Rules, 2004. Hence the reliance placed by on the Judgement in the case of M/s Broadcan India Research Pvt. Ltd. is not relevant in this case. 10. In view of the above discussion and findings, I reject the appeal filed by the Appellant against the impugned order-in-original No.008/AC (SD)/CGST & C. Ex./MC/Dn.VI/R-III/2022-23 dated 12.10.2022." 9. On perusal of the above findings of the learned Commissioner (Appeals) and the order passed by him in the impugned order, it transpires that the disputed service tax liability decided by the original authority was confirmed mainly on the following basis viz., (i) the appellants had accepted the service tax liability in respect of the advances received for providing taxable service of construction of residential units/complex for the purpose of levy to Service Tax under the Finance Act, 1994 and consequently there is no dispute on service tax liability (ii) the appellants paid the service tax on the said output service through CENVAT Credit available in their books of accounts, but the same was not shown in ST-3 returns; (iii) since the service tax payment was not reflected in ST-3 returns, it is in violative of Rule 9(5)....