Custom, Excise & Service Tax Tribunal
M/S. Win Gold vs Cce, Tirunelveli on 3 November, 2017
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
Appeal No. ST/41114/2017
(Arising out of Order-in-Appeal No.11/2017-ST (TVL) dated 20.2.2017 passed by the Commissioner of Central Excise (Appeals I), Coimbatore)
M/s. Win Gold Appellant
Vs.
CCE, Tirunelveli Respondent
Appearance Shri R. Balagopal, Consultant for the Appellant Shri R.Subramaniyam, AC (AR) for the Respondent CORAM Honble Smt. Archana Wadhwa, Member (Judicial) Date of Hearing : 24.10.2017 Date of Pronouncement : 03.11.2017 Final Order No. 42588 / 2017 After hearing both sides, I note that the appellant was engaged in providing services under the category of Business Auxiliary Service. On investigation it was found that they had collected service tax from the service recipient M/s. Titan Industries Ltd. but has not credited the said service tax into the Government exchequer.
2. On proceedings having been initiated against them, their service tax liability on the said short-paid service value stands confirmed against them to the extent of Rs.19,73,134/- along with imposition of penalties. The order passed by the original adjudicating authority stands confirmed by Commissioner (Appeals). Hence the present appeal.
3. Apart from contesting the penalties and praying for setting aside the same, in terms of the provisions of section 80 of the Finance Act, the appellant have also contended that their tax liability would come only to the extent of Rs.17,31,470/-. The said plea of the appellant does not stand accepted by Commissioner (Appeals) on the ground that they have not provided any worksheet to substantiate their claim.
Apart from the above, the appellants have also submitted that they filed a declaration under voluntary disclosure scheme admitting their liability to the extent of Rs.4,63,150/-. The said declaration was filed before the issuance of the show cause notice and confirmation of the same by the present show cause notice would amount to double taxation.
4. I find that the above contentions of the assessee relate to the factual aspect and require verification in the hands of the original adjudicating authority. For the said purpose, I set aside the impugned order and remand the matter to the original adjudicating authority.
5. As regards imposition of penalty, I find that non-payment of service tax relates to suppression of the assessable value of the services provided by the appellant. Though the appellant had collected the service tax amount from the client, but the same was neither reflected in the returns filed by them nor brought to the notice of the Revenue. Tribunal vide Final Order No. 41600/2017 dated 9.8.2017 in the case of Tranquil Security Solutions Vs. Commissioner of Service Tax, Chennai, has discussed the entire scenario of imposition of penalty under various sections of the Finance Act.
6. Inasmuch as the matter is being remanded for verification of the appellants claim for service tax liability would be on the lower side, I leave the matter of imposition of penalties to the adjudicating authority itself to be decided along with the assessees liability to be quantified afresh. I make it clear that the penalty aspect would be decided by the original adjudicating authority keeping in view the findings of the Tribunal in the above referred decision of Tranquil Security Solutions.
7. In view of the above, I set aside the impugned order and allow the appeal by way of remand to the original adjudicating authority.
(Pronounced in open court on 3.11.2017) (ARCHANA WADHWA) Member (Judicial) Rex 3