2026 (3) TMI 198

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....as not paid the service tax. 2. Appellant holding Service Tax registration and rendering service under the categories of Construction of Residential Complex Service, Advertising Agency Service, Renting of Immovable Property Service, Repair and Maintenance Service. During course of Audit, it is observed that the Appellant have raised invoices for the agreed amount with service tax. Since the issue regarding payment of service tax is a disputed issue, the tenant refused to pay service tax as demanded by the Appellant and due to that reason, the Appellant had calculated the service tax on cum tax benefit and paid. Accordingly for the period from 01.10.2012 to 31.03.2014, an amount of Rs. 5,54,873/- was short paid and for recovery of the sam....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....us, Appellant is eligible for cum tax benefit under Section 67(2) of the Finance Act, 1994. 4. The Learned Counsel further submits that as per Rule 6(3) of the Service Tax Rule, 1994, Appellant could have raised a credit note for the value reduced in the gross amount but did not raise any such credit note. It is merely a procedural lapse and claim of CUM tax benefit cannot be denied. This issue was considered by the Tribunal in the matter of CCE Vs. M/s Advantage Media Consultant (2008 (10) STR 449 (Tri. Kolkata) where it is held that :- "3. Service tax is an indirect tax. As per this system of taxation, tax borne by the consumer of goods/services is collected by the assessee (manufacturer/service provider) and remitted to the G....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... prior to April, 2013 is barred by limitation. Further it is an admitted fact that Appellant was correctly paying the service tax by adopting cum tax benefit and since the issue is of interpretation of Section 67(2) and since the Appellant was under the bonafide belief that Section 67(2) is clearly applicable to them therefore there cannot be any demand invoking the extended period of limitation and the penalty is also unsustainable. Further, the taxability under the service tax on renting of immovable property issue is pending before the Hon'ble Supreme Court, only to avoid litigation, the Appellant had paid the service tax on the same. Further Appellant has also filed statutory returns as per the provision of law. Thus, Respondent was awa....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....T 497 (SC) (vi) RaiBhadurNarain Sigh Sugar Mills Vs. UOI 1996 (88) ELT 24 (SC) 7. Learned AR reiterated the findings in the impugned order and submitted that the Appellant is liable to pay service tax since, the invoices clearly reflect the service tax payable by the tenant. The Learned AR also drew our attention to the rent bill which is clearly showing the service tax element. As per the laws prevailing at the relevant time, non-payment of due amount of service tax by the tenant cannot be a reason for non-payment of service tax by the appellant. 8. Heard both sides and perused the records. As regarding the demand, as per the invoice relied upon by the Adjudicating authority, Appellant had issued invoices showing the service....