Custom, Excise & Service Tax Tribunal
Automotive Manufacturers Pvt Ltd vs Cce Nagpur on 21 June, 2018
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE
TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. IV
APPEAL NO. ST/88595/2014
(Arising out of Order-in-Appeal No. NGP/EXCUS/000/APP/067/14-
15 dated 18.06.2014 passed by the Commissioner of Central Excise,
Customs & Service Tax (Appeals), Nagpur.)
M/s Automotive Manufacturers Pvt. Ltd. Appellant
Vs.
CCE, Nagpur Respondent
Appearance:
Ms. Puloma Dalal, Chartered Accountant for Appellant Shri V.R. Reddy, Assistant Commissioner (A.R.) for Respondent CORAM:
HON'BLE SHRI RAMESH NAIR, MEMBER (JUDICIAL) HON'BLE SHRI RAJU, MEMBER (TECHNICAL) Date of Hearing: 11.04.2018 Date of Decision: 21.06.2018 ORDER NO. A/86859 / 2018 Per: Raju:
This appeal has been filed by M/s Automotive Manufacturers Pvt. Ltd. against confirming the demand of Service Tax and imposition of penalty.
2. Learned Counsel for the appellant argued that they are engaged in the selling passenger car of M/s Maruti Suzuki Ltd. and also engaged in providing services to insurance companies and finance companies which falls under the category of "Business Auxiliary Services". During the Audit Revenue deducted certain figures in the Balance Sheet shown in the ST-3 returns for the period 2005-06 to ST/88595/2014 2 2008-09. She argued that the Balance Sheet and Profit & Loss Account are to be prepared on mercantile basis under the Companies Act, 1956. She further argued that the figures of Balance Sheet prepared on accrual basis and the figure of taxable value of service as shown in the ST-3 return on receipt basis would be different. She argued that she had submitted reconciliation on the account made by Chartered Accountant and the same has not been challenged nor rejected during the entire procedure. She further argued that some entry in the Balance Sheet as in some cases of Service Tax is separately calculated and not included in total value. She argued that commission received from banks is inclusive of Service Tax however no record in the proceeding. She argued that for the year 2006-07 the liability of Service Tax on com-duty basis on the taxable value of Rs. 89,84,299/- would be Rs. 9,88,305/- while the appellant had made payment of Service Tax of Rs. 10,25,007/- thus in fact excess duty payment of Service Tax made. She argued that in the financial year 2008-09 the deduction of amount of Rs. 20,15,732/- of the commission for the period 2008-09 which was actually received in 2009-10 has not been corrected. Moreover a payment of Rs. 8,872/- made through CENVAT credit and reflected in ST-3 return also is not taken into consideration. She pointed out that the amount of commission for the year 2008-09 which was received in 2009-10, they were discharge of Rs. 1,97,300/-. She also pointed out that there is no case for extended period of limitation as all the data recorded in the accounts.
3. Learned AR relies in the impugned order.
ST/88595/2014 3
4. On perusal of the impugned order whether the reconciliation of the data submitted by the appellant is examined, it is noticed that in the year 2006-07 the impugned order treated the entire amount received as commission and treat the same as the assessable value for payment of duty. It is oppose that the total amount received as commission in the instant case as should be treat as exclusive of the commission and that have been granted. No reason have been recorded as to why the benefit of cum-duty have been granted to amount have been received.
5. Similarly the reconciliation-9, it is apparent that while gross amount pertaining to the year 2007-08 has been added to assessable value, gross amount of income recorded in financial year 2008-09 but received in subsequent year has not been deducted. In these circumstances, we find that the impugned order has failed to take notes of all the grounds raised by the appellant.
6. In view of above, we find that the impugned order is set aside and matter is remanded to the Commissioner (Appeals) for all the ground raised by the appellant in their appeal memorandum and pass a fresh order. The appeal is allowed by way of remand to the Commissioner (Appeals).
(Pronounced in Court on 21.06.2018)
(Ramesh Nair) (Raju)
Member (Judicial) Member (Technical)
Sp