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➢ They had paid a certain amount of taxes during the period of dispute. The amounts paid by them towards the tax was also reflected in their ST-3 returns. This tax paid should have been taken into account while determining the tax payable by them.
4.16 Commissioner has dealt the two issues raised by the appellants in para 4.19 and 4.20 of his order. These para's are reproduced below:
"4.19 The noticee have claimed that there is a computation error in the SCN and excess calculation of Rs.20.03 crores towards alleged liability of Service Tax has been made in the SCN. I have gone through the discrepancies pointed out by the noticee in the Annexure (computation statement) attached to the SCN, the computation statement as provided by the noticee and the documents available on record and find that the objections raised by the noticee with regard to the demand amount is bereft of merit. The contention of the noticee that service tax is not leviable on penalties collected by them from their customers is not acceptable since Service Tax is leviable on the gross amount charged by the service provider in terms of Section 67 of Chapter V of the Finance Act, 1994 and penalties collected by noticee form a part of the gross receipts. The noticee has further claimed that Service tax is already paid on 'Fees for E- TDS (AIR) Upload', 'Fees for E-TDS Upload 04-05', 'Fees for E- TDS Upload 05-06', 'Fees for Tin (Pan 45)" 'Fees for Digitisation charge' and 'Fees for Tin (Tan 35)'. In this regard, I have gone through the statement dt. 15.10.2009 of Shri TK Desai, Senior Vice-president of noticee, wherein he has described all the different heads on which Service Tax has. been paid by the noticee. I do not find mention of the heads on which service tax is alleged to have been paid by the noticee in the statement. Therefore, I am not inclined to accept their contention. As ST/87451/2016 regards the noticees contention that Service Tax is calculated twice on same item 'Recovery on A/c of ISDN', I find from the data provided by noticee that there are two distinct items 'Recovery on A/c of ISDN (Tin)' and 'Recovery on A/c of ISDN'. Therefore the Service tax calculation is done correctly. The noticee has also contended that 'Dpm Licence fees', 'MS Exchange Licence fees' and 'SQL - Licence fees' are together called 'Software Licence fees' and that the department has erred in taking this amounts once individually and again under the broad heading resulting in doubling of demand. I find from the records that all the four heads find separate mention in the date provided by noticee and therefore the same are correctly reflected in the Annexure to SCN. In view of the above, I find that the computation of demand is correctly done as made out in the SCN.