Court No. - 35
Case :- CENTRAL EXCISE APPEAL No. - 31 of 2018 Appellant :- Commissioner Of Cgst And Central Excise Respondent :- M/S Sharma Fabricators And Erectors Pvt. Ltd. Counsel for Appellant :- B.K.Singh Raghuvanshi Counsel for Respondent :- Atul Gupta
Hon'ble Bharati Sapru,J. Hon'ble Piyush Agrawal,J.
This appeal has been filed by the department under Section 35-G of the Central Excise Act, 1944 (hereinafter referred to as the 'Act') against the order passed by the CESTAT dated 14.06.2017.
The question of law sought to be answered are quoted hereunder:-
"Whether the show-cause notice issued by the department on the basis of drat audit report is sustainable or not?'
We have heard Shri B.K.S. Raghuvanshi, learned counsel for the appellant and Shri Atul Gupta, learned counsel for the assessee and also perused the record.
There is no dispute on facts. The show-cause notice which was issued by the department was presumably issued on the basis of the notion that the assessee was liable to tax on the amount so received by it. On the other hand, the relevant rule i.e. Rule 6 of the Service Tax Rules, 1994, are quoted hereunder:-
6 [(1) The service tax shall be paid to the credit of the Central Government by the 5th of the month immediately following the calendar month in which the payments are received, towards the value of taxable services:
Provided that where the assessee is an individual or proprietary firm or partnership firm, the service tax shall be paid to the credit of the Central Government by the 5th of the month immediately following the quarter in which the payments are received towards the value of taxable services:
Provided further that notwithstanding the time of receipt of payment towards the value of services, no service tax shall be payable for the part of whole of the value of services were not taxable:
Provided also that the service tax on the value of taxable services received during the month of March, or the quarter ending in March, as the case may be, shall be paid to the credit of the Central Government by the 31st day of March of the calendar year.] A plain reading of the Rules make it abundantly clear that the service tax is payable on an amount which is received and not on an amount which may be received in future. The conclusion drawn by the Tribunal that the show-cause notice is bad and not in accordance with Rules is, therefore, correct. The question of law is, therefore, answered in favour of the assessee and against the department.
The appeal is accordingly dismissed.
Order Date :- 25.2.2019 pks