TaxTMI 
TaxTMI 
2026 (6) TMI 1360
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....l Excise, Allahabad. 2. The Appellant M/s Grace Infraventures Pvt. Ltd. is registered with the Service Tax Department. An inquiry was initiated due to observed discrepancy in Service Tax liabilities. Based on the information provided by the Appellant in ST-2, ST3, Payment Challans, Form 26AS, Balance-Sheet, profit and loss account for the Financial Year 2015-16 and 2017-18. Accordingly, Show Cause Notice [SCN] dated 30.12.2020 was issued proposing as under:- (i) Service Tax total amounting to Rs. 9,37,986/- (Rupees Nine Lakhs Thirty Seven Thousand Nine Hundred Eighty Six only) (including Swachh Bharat Cess & Krishi Kalayan Cess,) should not be demanded and recovered from them under the proviso to the section 73 (1) of the Act al....
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....3-ST dated 13.10.2023, the Order-In-Original was reviewed and the learned Commissioner, CGST, Allahabad directed to file the appeal against the Order-In-Original before the First Appellate Authority. The learned Commissioner (Appeals) vide the impugned Order-In-Appeal set aside the Order-In-Original dated 17.07.2023 and passed the following order:- "(1) I Confirm demand of Service Tax (including Cesses) amounting to Rs. 1,25,775/- along with interest. Since respondent has already deposited service tax Rs. 1,25,775/- & due interest Rs. 81,752/-, therefore, I appropriate the same into Government account; (ii) I impose penalty of Rs. 1,25,775/ under Section 78 of the Act. Since respondent has already deposited penalty amounti....
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.... been appropriated in the impugned order. Further, the Appellant has also deposited 22,917/- towards the penalty of Rs.1,25,775/- imposed under Section 78 of the Act and amount of Rs.22,917/- has also been appropriated in the impugned order. I find that in the ST-3 Returns, Appellant-Assessee claimed the CENVAT Credit in Column D2 whereas it should have been claimed in Column D4. I find that the CENVAT Credit has been availed as under:- Financial Year Cenvat Credit Availed 2015-16 (October to March) 1,77,178/- 2016-17 (April to September) 28,53,138/- 2016-17 (October to March) 5,27,746/- Total 35,58,062/- 7. I find that in the Order-In-Original the learned Adjudicating Authority has observed in Para 16.1 as ....
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....he advance received from its customers for the years 2013-14 to 2016-17 and subsequently, the allotment of the flat was cancelled by the customer. 18.2. Further, we find that the legal provision in STR as far as it relates to present case are as follows:- "6 (3) Where an assessee has issued an invoice, or received any payment, against a service to be provided which is not so provided by him either wholly or partially for any reason, [or where the amount of invoice is renegotiated due to deficient provision of service, or any terms contained in a contract] the assessee may take the credit of such excess service tax paid by him, if the assessee - (a) has refunded the payment or part thereof, so received for the serv....
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....ongly availed demand amounting to Rs. 35,58,062/- under proviso to Section 73 (1) of Finance Act, 1994 along with interest under Section 75 of the Act, as Service Tax is not demandable from them then interest is also not recoverable from the party. 20.1 Since no due taxability of Service Tax is observed on the party, the suppression, willful mis-statement, or the case of fraud do not attract to the instant case. Therefore, I find that the penalty under Section 78 of the Finance Act, 1994 is not applicable to the party. 20.2 With Respect to the imposition of penalty under Section 77 (1)(c), (i) & (iii), I have already observed that imposition of penalty under Section 77 is not sustainable. The party has also provided all th....