Custom, Excise & Service Tax Tribunal
Sarku Engineering Services Sdn Bhd vs Commr.Service Tax- Vii Mumbai on 11 September, 2020
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
MUMBAI
WEST ZONAL BENCH
SERVICE TAX APPEAL NO: 87377 of 2015
[Arising out of Order-in-Original No: 18-19/ST-VII/RS/2015 dated 28th August
2015 passed by the Principal Commissioner of Service Tax, Mumbai - VII.]
Sarku Engineering Services SDN BHD
3rd Floor, Oricon House, 12 K Dubash Marg
Kalaghoda, Mumbai 400 001 ...Appellant
versus
Principal Commissioner of Service Tax -VII
New Central Excise Building
115, MK Road, Churchgate, Mumbai - 400020 ...Respondent
WITH SERVICE TAX APPEAL NO: 87634 of 2015 [Arising out of Order-in-Original No: 18-19/ST-VII/RS/2015 dated 28th August 2015 passed by the Principal Commissioner of Service Tax, Mumbai - VII.] Commissioner of Service Tax -VII 2nd Floor, MSEB Building, Estrella Battery Compound Matunga Labour Camp, Dharavi, Mumbai - 400019 ...Appellant versus Sarku Engineering Services SDN BHD 3rd Floor, Oricon House, 12 K Dubash Marg Kalaghoda, Mumbai 400 001 ...Respondent APPEARANCE:
Shri V Sridharan, Senior Advocate with Shri Vinay Jain and Sujit Kotian, Advocates for the assessee Shri KM Mondal, Special Counsel (AR) for Revenue CORAM:
HON'BLE MR C J MATHEW, MEMBER (TECHNICAL) HON'BLE DR SUVENDU KUMAR PATI, MEMBER (JUDICIAL) ST/87377 & 87634/2015 2 FINAL ORDER NO: A/ 85768-85769 / 2020 DATE OF HEARING: 20/09/2019 DATE OF DECISION: 11/09/2020 PER: C J MATHEW The appellant company, M/s Sarku Engineering Services SDN BHD of Malaysia, entered into turnkey contract on 22nd February 2006 with M/s Oil & Natural Gas Corporation Ltd for the 'revamp of 26 platforms at Mumbai High South field', on acceptance of bid of ₹ 326.83 crores, and project office closed, as intimated to Reserve Bank of India in letter dated 18th October 2013, on completion. Two show cause notices were issued to them on 22nd October 2014 for recovery, under section 73 of Finance Act, 1994, of ₹ 9,19,07,863 as tax dues arising from rendering of 'erection, commissioning or installation service' between April 2009 and March 2012 under the said contract as well as ₹ 2,88,93,108 that was alleged to have been wrongly availed as CENVAT credit and of ₹ 18,23,00,608 allegedly due as deemed provider, under section 66A of Finance Act, 1994, on services provided from outside India to the appellant.
2. Both the notices were disposed of by common order-in-original no. 18-19/ST-VII/RS/2015 dated 28th August 2015 of Principal ST/87377 & 87634/2015 3 Commissioner of Service Tax, Mumbai-VII which is now impugned for us on several grounds. Revenue is in appeal against the invoking of second proviso to section 78(1) of Finance Act, 1994 for limiting the penalty to fifteen percent without satisfaction that the pre-requisite of deposit of such amount within the period prescribed therein had been complied with.
3. While dropping the demand pertaining to wrongful availment of CENVAT credit of ₹ 2,88,93,108, though not allowed to be debited for adjustment towards their dues, the tax on output service was limited to ₹ 4,05,49,749 by acknowledging chargeability under section 65(105)(zzzza) of Finance Act, 1994 applicable to provider of 'works contract service' with concomitant eligibility for composition scheme. In the disposal of the second notice, the authority, taking note of computational errors and wrongful levy, limited the recovery to ₹ 17,86,58,713. Penalties of ₹ 9,21,67,077 equal to the amount remaining unpaid and of ₹ 1,90,56,008 at fifteen percent of the amount paid towards the computed dues before issuance of show cause notices were imposed under section 78 of Finance Act, 1994. Besides, penalties under section 70 and section 77 of Finance Act, 1994 were imposed on the appellant company. The impugned order also appropriated ₹ 17,55,26,556 and ₹ 11,79,54,465 that had been paid by the appellant company towards tax and interest liabilities respectively and ₹ 4,84,85,171 that had been recovered from M/s Oil ST/87377 & 87634/2015 4 and Natural Gas Corporation Ltd during the pendency of proceedings.
4. Mr V Sridharan, Learned Senior Counsel appearing for the appellant, urged us to set aside the impugned order for not having considered the several legal submissions in their response to the notices. He contended that the appellant could not have been fastened with either of the tax liabilities as the service had been provided from outside the tax jurisdiction and the project office, that had been temporarily set up in fulfilment of contract conditions, was not business or establishment within the meaning of the provisos in section 66A of Finance Act, 1994 thereby devolving the liability on the recipient of service as deemed provider. Furthermore, he contends that the bulk of the demand in the second notice pertains to 'supply of tangible good service' on chartering of vessel that was contracted entirely at their Malaysian office. According to him, a contractual undertaking between two private parties assigning responsibility for tax compliance cannot alter the liability of the recipient of output service under statute and submits that decision of the Hon'ble Supreme Court in Rashtriya Ispat Nigam Ltd v. Dewan Chand Ram Saran [2012 (26) STR 289 SC] has been erroneously pressed into service on behalf of the Government which is not a party to the impugned contract. He relies upon circular no. B1/6/2005-TRU dated 27th July 2005 of the Central Board of Excise & Customs, clarifying the expressions 'business establishment' and 'fixed establishment', ST/87377 & 87634/2015 5 and UK VAT Notice 741A (Place of Supply of Services) to buttress his submissions on being a provider of service from outside India. The second contention of Learned Senior Counsel is that the service enumerated for taxability in section 65(105)(zzzza) of Finance Act, 1994 could not have been the basis of demand as that had not been proposed in the show cause notice and that the activity did not merit the nomenclature owing to non-leviability of state levy which is of essence in 'works contract' for which the reliance was placed on the decision of the Hon'ble High Court of Gujarat in Larsen & Toubro v. Union of India [2017 (52) STR 457 (Guj)] and of the Hon'ble High Court of Bombay in Commissioner of Sales Tax, Maharashtra v. Pure Helium (India) Ltd [(2012) 49 VST 17]; he opined that, with the decision of the Hon'ble Supreme Court in Commissioner of Central Excise & Customs v. Larsen & Toubro Ltd [2015-TIOL-187-SC-ST], the scope of levy as provider of the taxable service proposed in the show cause notice did not extend to composite contracts. He further contends that the unilateral disallowance of eligibility, under notification no. 12/2003-ST dated 20th June 2003, for exclusion of value of material supplied in the composite contract runs counter to the optional exercise of recourse to Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007 and that any tax liability arising on the provision of taxable service should be entitled to set off amounting to ₹ 2,93,95,382 afforded by CENVAT Credit ST/87377 & 87634/2015 6 Rules, 2004. According to him, the decision of the Tribunal in Gupta Energy Pvt Ltd v. Commissioner of Central Excise [2014-TIOL-1548- CESTAT-MUM] forecloses foisting of the composition scheme without consent of assessee.
5. On the recovery ordered for procurement of services from outside India, it is the contention of Mr Sridharan that the appellant company has no existence in India and that all commercial engagements with overseas entities were contracted outside the tax jurisdiction. According to him, the notice is faulty in not having identified the specific services that were alleged to have been received without which categorization among the three options, offered by Taxation of Services (Provided from Outside India and Received in India) Rules, 2006 for determination that service had been received in India, could not have been undertaken and, in the light of the decision of the Tribunal in United Telecom Ltd v. Commissioner of Central Excise, Hyderabad [2011 (21) STR 324 (Tri-Bang)], is improper. He further claims that the vessel chartered by them, and on which tax of ₹ 16,14,60,856 has been computed, was not used entirely in India as the vessel was taken delivery of, as also handed back, in Malaysia and hence not within the ambit of proviso to rule 3(iii) of Taxation of Services (Provided from Outside India and Received in India) Rules, 2006 as applied to taxable service of 'supply of tangible goods' in section 65(105)(zzzzj) of Finance Act, 1994. He referred to the ST/87377 & 87634/2015 7 decision of the Tribunal in Petronet LNG Ltd v. Commissioner of Service Tax, New Delhi [2013-TIOL-1700-CESTAT-DEL], that was followed in Reliance Industries Ltd v. Commissioner of Service Tax [2014 (36) STR 820 (Tri-Mumbai)], in support thereof. A further submission of his is that several of these services had been performed entirely outside India and, with particular reference to 'survey and exploration of mineral, oil and gas service' and 'technical inspection and certification services', covered by rule 3 (ii) of Taxation of Services (Provided from Outside India and Received in India) Rules, 2006.
6. Mr KM Mondal, Learned Special Counsel representing Commissioner of Service Tax, pointed out that the impugned order itself makes it clear that the appellant company could not seek the shelter of section 66A of Finance Act, 1994; according to him, the adjudicating authority has taken note of the registration under Service Tax Rules, 1994 specifying an address in India as well as paragraph no. 3.4.2 of the contract assigning the obligation of discharge of tax to the appellant company. He also points out that the adjudicating authority has, fairly, dropped a portion of the demand pertaining to output service on the submissions made during the proceedings. Relying upon the decisions of the Hon'ble High Court of Calcutta in Indus Integrated Information Management Ltd v. Principal Commissioner of Service Tax, Kolkata-I [2018 (14) GSTL 24 (Cal)] ST/87377 & 87634/2015 8 and of the Hon'ble Supreme Court in JK Steel Ltd v. Union of India [1978 (2) ELT J355 (SC)], Learned Special Counsel disputes the challenge to the adoption of fresh classification, as well as application of composition scheme, made on behalf of the appellants. The operation, in full measure, of the law laid down by the Hon'ble Supreme Court in re Rashtriya Ispat Nigam Ltd, he contends, cannot be wished away by mere denials.
7. On the confirmation of demand in the second notice, Mr Mondal argues that the remitting of foreign exchange for the procurement of services, as well as utilization for rendering of the service contracted by M/s Oil and Natural Gas Corporation Ltd, negates the contention on behalf of the appellants that these were rendered outside the tax jurisdiction. He cited the decision of the Hon'ble High Court of Bombay in Commissioner of CGST, Mumbai West v. JMSM Satellite (Singapore) Pvt Ltd [2019 (368) ELT 61 (Bom)] in support. He also submits that the appellant has erred in contending that the area of operation at Mumbai High was beyond the tax jurisdiction and that evidence of the chartered vessel having been, at any time during the revamp, deployed outside India had not been furnished. He is of the view that the decision of the Tribunal in Star India Pvt Ltd v. Commissioner of Central Excise, Thane-I [2015 (38) STR 884 (T)] disentitles the claim that the bar of limitation applied to the proceedings under section 73 of Finance Act, 1994.
ST/87377 & 87634/2015 9
8. The appellant company had entered into a turnkey agreement with M/s Oil and Natural Gas Corporation Ltd for the revamp of 26 offshore platforms located in Bombay High and, admittedly, had set up a project office in Mumbai. For the alleged failure to discharge tax liability on rendering of 'erection, commissioning or installation service', defined, in section 65(39a) of Finance Act, 1994, for taxability upon incorporation of section 65(105)(zzd) in Finance Act, 1994, the first of the notices were served on the appellant. The contention of the appellant company is that the tax should have been collected, by operability of section 66A of Finance Act, 1994, from the recipient, as deemed provider, owing to the actual provider not having a business or fixed establishment in the country. The logic underlying the fastening of tax liability provided from outside India on the recipient in India, governed by section 66A of Finance Act, 1994 read with Taxation of Services (Provided from Outside India and Received in India) Rules, 2006, was deliberated upon by the Tribunal in Coastal Gujarat Power Ltd v. Commissioner of Service Tax, Mumbai-I [2016-TIOL-2925-CESTAT-MUM] to hold that '8........ We see from provision that there are two elements to the fiction with the existence of both as a prerequisite for the provisions of the Chapter to apply. These are the fiction of taxable service and the fiction of recipient being provider. Services originating outside the country, with the provider being jurisdictionally non-existent, inherently renders the circle of transaction incomplete. The free ends of the circle ST/87377 & 87634/2015 10 are brought together by deeming the activity as taxable and deeming the recipient be the provider. In the domestic context, the contrarian mechanism of the recipient pays was in vogue though by transposing the object of tax.... With this creation of the new breed of taxpayer, the existence, character and status of the provider was rendered irrelevant in the scheme of taxation thus extending the jurisdiction of Finance Act, 1994 to all and any taxable service subject specific general exemption under section 93 of Finance Act, 1994.....
9. The intent was to close the loophole that enabled escapement from tax that otherwise fastens on a transaction between two entities intra-jurisdiction. It is also an acknowledged rule of interpretation that surplusage cannot be presumed in a statute. The existence of reference to section 93 of Finance Act, 1994 and the rules supra cannot be presumed to be in error or an unintended intrusion. From a harmonious construction of the parent provision and the Rules supra, it would be reasonable to infer that the Rules exempt the application thereof when the identity of service provider is not obscured by jurisdictional blindside....' thus alienating taxability of activity in the hands of the actual beyond controversy. It is clear that the legislative intent of coalescing the fictional provider with the recipient was impelled both for transcending the impediment to definitional existence of provider to render taxable and for overcoming the impediment of jurisdictional enforceability. By this legislative fiction, disownment by the provider, inherent in the statute, does not consign the taxable service to the mortuary but to the orphanage and, that too, for the moment. In this ST/87377 & 87634/2015 11 dispute, the rendering of services has not been disclaimed by the provider. In other words, the empowerment under section 66A of Finance Act, 1994, intended only for enabling the constitutional imperative of collecting tax imposed by law, is not a defence against recovery of tax under section 73 of Finance Act, 1994 from the provider. By their very act of acknowledging the show cause notice, responding in proceedings before the adjudicating authority and placing themselves in the appellate jurisdiction of this Tribunal, the appellant company has forfeited extra-territorial obscurement that is sine qua non for recourse to section 66A of Finance Act, 1994.
10. Finance Act, 1994 does not distinguish a project office from a business or fixed establishment. The circular referred to by Learned Senior Counsel is, admittedly, with reference to Explanation in section 65(105) that was subsequently inserted as proviso in section 66A upon incorporation in Finance Act, 1994. Obviously, it was flawed provenance that inspired the legislated substitution and any clarification in that flawed context cannot escape taint sufficiently to advance the proposition for exclusion claimed on behalf of the appellant company by such reference. In the nature of the contractual undertaking, specific to the present dispute, it is inconceivable that the service could have been rendered without the physical presence, in some form, of the overseas provider in India. Hence, the recourse to section 66A of Finance Act, 1994 is neither an option for the tax ST/87377 & 87634/2015 12 authority nor for us to brook as aiding the appellant company.
11. Both sides have referred to the obligation of tax compliance embodied in the contract, with Mr Mondal, referring to the decision in re Rashtriya Ispat Nigam Ltd, positing that the appellant company cannot be allowed to alienate itself from contractual commitment. On the other hand, Mr Sridharan refers to that very clause for the proposition that the obligation is limited to tax levies as on the date of offer of price bid. We are afraid that too much emphasis, and not particularly contextual, has been brought to bear on a clause which is commonplace in such contracts. The intent is to ring fence the contractee from susceptibility to non-performance from cost overrun arising from statutory levies that is presumed to have been subsumed in the price bid with claim for reimbursement of tax arising only upon subsequent revision, or imposition, of levy. As a creation of the statute, it can hardly be expected of us to hold that a contractual obligation prevails over statutory provisions. Nor is it within the privilege of Revenue in these proceedings to insist upon enforcement of contractual obligation between two commercial entities. Hence, we are not confronted by any obstacles to consideration of the appeal on merit.
12. That the appellant company has rendered service, taxable under Finance Act, 1994, is not in dispute; neither is the contracted value, ST/87377 & 87634/2015 13 adopted for the purpose of assessment, being disputed. Though the notice contended that the appellant company had provided 'erection, commissioning or installation service', the confirmation of demand was founded upon providing of 'works contract service' to which objection has been raised on behalf of the appellant company. That both these services were taxable during the period of dispute is not controverted; indeed, the descriptions in section 65(105)(zzzza), as incorporated in Finance Act, 1994 for taxing of 'works contract service' subsumed, inter alia, 'erection, commissioning or installation service' within it and it was upon that the Hon'ble Supreme Court, in re Larsen & Toubro, held that contracts pertaining to the latter involving supply of material was exclusively taxable only by the later incorporation. By that interpretation of the mutually exclusive entries, the demand under the already existing provision could not survive if such service was rendered for the performance of composite contracts. Nevertheless, from the adjudication order, it would appear that the applicability of the later incorporation to the impugned activity was brought before the adjudicating authority by none other than the appellant company. It is trite that, in adjudication proceedings, no detriment can be visited upon a noticee without grant of opportunity to counter or defend. With the issue of taxability under 'works contract service' having been raised by the appellant company before the adjudicating authority, it is not open now to claim that the ST/87377 & 87634/2015 14 alternative entry had been invoked without their knowledge. On these facts, the decisions cited by Learned Senior Counsel on travelling beyond the show cause notice will not come to their assistance. The taxing of the impugned activity as provision of 'works contract service' does not, therefore, detract from the legality of the demand.
13. Learned Senior Counsel has contended that acknowledgment as 'works contract service' is predicated upon subjecting the material component of the composite contract to levy of tax by the jurisdictional state government for which reliance is placed on the decision of the Hon'ble High Court of Bombay in re Pure Helium (India) Ltd. We find that the referred decision disputed the escapement from levy of Central Sales Tax, on the admitted lack of jurisdiction of the State of Maharashtra, on supplies effected to the offshore platforms of Oil and Natural Gas Commission (as it then was) in Bombay High (as it then was) and, with the inter-state movement, thereby, inchoate, the provisions of the said law was held to be inapplicable. Undoubtedly, the present dispute pertains to levy but, nonetheless, of tax imposed under powers conferred upon the Union, in which the tax jurisdiction over the offshore installations in Mumbai High is not excluded as it may be for the government of a state. Furthermore, 'works contract' transactions were accorded constitutional sanctification as deemed 'sale of goods' for ensuring that jurisdiction to tax sale of goods, vested in the constituent states, ST/87377 & 87634/2015 15 was not compromised. The foray of the Central Government in such transactions, although constitutionally restricted to the service component, occurred decades later and, restricted, as the competence was, to the service component which was amenable to definition validated only with reference to that over which the federating states were invested with constitutional competence, the actual levy of the tax, or law for such levy, is not the essential determinant. Consequently, the absence of jurisdiction to tax supply of materials to installations in Mumbai High does not impinge upon invoking of levy permitted by section 65(105)(zzzza) of Finance Act, 1994.
14. The appellant company has objected to the compulsion foisted on them by the adjudicating authority in requiring them to discharge tax liability under Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007. It is quite probable that the adjudicating authority may have been influenced by the absence of any documentation to evidence alternative liability, under notification no. 12/2003-ST dated 20th June 2003, as being below that computed under the scheme of composition. Nevertheless, the necessity of providing the option as laid down in the rule 3(1) of Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007, as well as the decision of the Tribunal in re Gupta Energy Pvt Ltd, we cannot but to concur that the appellant company should not precluded from availing of the more favourable computation. Undoubtedly, the ST/87377 & 87634/2015 16 data for such comparison was not before the adjudicating authority and, nor for that matter, is it before us, but, in the light of the pleading, cannot be discountenanced. We intend to resolve this presently.
15. Demand of ₹ 17,55,58,713 has been confirmed to be due from the appellant company as tax on services procured from outside India for execution of the contract with M/s Oil and Natural Gas Corporation Ltd. As we have already held supra that the appellant is not provider of service from outside India but an assessee within the meaning of Finance Act, 1994, the correctness of taxability, under challenge by the appellant company, must be decided in terms of section 66A of Finance Act, 1994 read with Taxation of Services (Provided from Outside India and Received in India) Rules, 2006. The primary submission of the appellant company is that the services procured from outside the country had not been specified in the notice which, according to Mr Sridharan, is a requirement as decided by the Tribunal in re United Telecom Ltd to counter which Mr Mondal places reliance on the decision in re Indus Integrated Information Management Ltd and in re JK Steel Ltd. We find from the records that the appellant company was not exactly hapless in challenging the proposed liability with factual rebuttal of the several elements of the demand. To that extent, there can be no controversy that the notice was not lacking in means to confront the demand. Some of the discrepancies pointed out by appellant company were deliberated ST/87377 & 87634/2015 17 upon in the impugned order. It is contended on behalf of the appellant company that the substantial portion of the demand, relating to charter of a vessel, is not leviable as the vessel was not operational for the entire period in India. Undisputedly, as pointed out by Mr Mondal, evidence of such is not available; nevertheless, it would appear that the contention arising from the delivery, and the handing over, having occurred outside the country was not considered before crystalizing the demand. Furthermore, it is claimed that two other taxable activities would, in terms of Taxation of Services (Provided from Outside India and Received in India) Rules, 2006, not be leviable to tax as these were performance-based and to be taxed accordingly. These appear to be pleadings made for the first time ever. Naturally, these need to be attended to before the appellate jurisdiction can decide on the correctness, or otherwise, thereof.
16. The several penalties imposed under Finance Act, 1994 are under challenge. The adjudicating authority has invoked section 78 of Finance Act, 1994 to mirror the proceedings initiated for recovery of tax for the extended period which are predicated upon suppression, fraud, misrepresentation etc. on the part of the assessee with the intention to evade tax. It cannot but be taken note of that though the show cause notice had proposed tax on provision of 'erection, commissioning or installation service', the liability was fastened as provider of the alternative service pleaded by the appellant. Moreover, ST/87377 & 87634/2015 18 the scope of the service invoked in the show cause notice and the adopted classification were finally settled only in 2015 by the Hon'ble Supreme Court. The adjudicating authority itself appears to have been uncertain of the provision under which tax levy arose; attribution of more certainty to the appellant company does not appear to be equitable. In such circumstances, it is difficult to conclude, with absolute sureness, that intent to evade taxes was manifest in the actions of the appellant company. No evidence to the contrary is adduced in the show cause notice. The site of the revamp, far beyond the territorial waters, may well have given rise to misconceptions about taxability at the place at which service was rendered. Errors in computation of demand has been admitted to in the crystalization of revised demand.
17. Towards the liability in the second notice, ₹ 17,55,26,556 has been deposited before issue of show cause notice on account of tax and ₹ 11,79,54,465 on account of interest. As deemed provider of service, the appellant company, upon discharge of tax liability on services procured from outside India, is eligible for CENVAT credit. There is, additionally, a further claim of eligibility for availment of ₹ 2,88,93,108 that was denied by the original authority. On this set of facts, it would appear that, in conjunction with amounts appropriated in the impugned order, no tax liability remained unpaid on the date of notice warranting closure of proceedings without issue of notice ST/87377 & 87634/2015 19 merely for imposition of penalty even in circumstances of lack of clarity on the extent of the taxability.
18. Hence, in terms of section 73(3) of Finance Act, 1994, with no dues apparently pending, there is no scope for imposition of penalty under section 78 of Finance Act, 1994. We, therefore, set aside the penalties imposed on the appellant company. Appeal of Revenue against the restricted penalty is, thus, infructuous and is dismissed.
19. The claim of the appellant to lower tax liability on output service, owing to eligibility for abating of material cost from the taxable value of services, must be responded to. Likewise, the appellant must be given an opportunity to validate claim for availment of CENVAT credit of ₹ 2,88,93,108. The claim of the appellant company to exclude the value of 'supply of tangible goods service', 'survey and exploration of mineral, oil and gas service' and 'technical inspection and certification service', for the reasons specified in the appeal, needs to be scrutinized. Remand is warranted for the purpose.
20. With the finding that service provided under contract to M/s Oil and Natural Gas Corporation Ltd is liable to tax from M/s Sarku Engineering Services as also on the services procured from outside India to the extent permissible, and in accordance with Taxation of Services (Provided from Outside India and Received in India) Rules, 2006 we direct that the matter revert to the original authority for fresh ST/87377 & 87634/2015 20 quantification net of the exclusions, to the extent available to them, after affording opportunity to assessee for exercise of option to claim abatement of value of material used for rendering output service and to furnish data in support of the several claims recorded supra. The appellant company shall be entitled to set off the consequent liability against tax, and interest, paid before issue of notice and eligible CENVAT credit on services procured domestically and from outside India. In our estimation, this should suffice for compliance with section 73(3) of Finance Act, 1994. Should it be otherwise, penalty, under section 78 of Finance Act, 1944, shall be limited to the tax that remains unpaid after such re-computation. All other penalties are set aside.
21. Appeal is, thus, allowed by way of remand on the limited terms supra.
(Order pronounced in the open court on 11/09/2020) (Dr. Suvendu Kumar Pati) (C J Mathew) Member (Judicial) Member (Technical) */as