M/s. Bright Marketing Company vs Commissioner Of GST & Central Excise

M. Ajit Kumar, Member (T)

This appeal is filed by the appellant against Order in Appeal No. 44/2014 dated 28.4.2014 passed by the Commissioner (Appeals), Coimbatore.

Brief facts of the case are that the appellant is providing taxable service under the category of ‘Maintenance and Repair Service’ classifiable under sec. 65(105)(zzg) of the Finance Act, 1994. The appellant is an authorized sales and service dealer for ‘RICOH’ brand photocopier, EPSON brand LCD projectors and gastetner brand lazer printers etc. and they are also undertaking ‘Repair and Maintenance Works’ on that equipment. On verification of the accounts maintained by the appellant, the officers of Central Excise noticed that the appellant had collected service charge of Rs.34,04,825/- on account of ‘Maintenance and Repair Service’ during the period from October 2008 to January 2009 and paid service tax only on 30% of the bill value and the remaining portion was claimed as exempted value under Notification No. 12/2003-ST dated 20.6.2003. It was felt that the exemption was due to a wrong perception and against the condition stipulated under the Notification that the value of the materials supplied and the value of service rendered should be indicated separately in the invoice / bill, but these details were not shown in their invoice in accordance with Notification. Further, in the ST-3 returns Rs.27,57,155/- was shown as gross receipt as against the actual collection of Rs.34,04,825/-. Other details such as abatement and relevant notification under which exemption claimed were also not indicated in the return. Thus, the appellant had not paid the service tax on the full value and suppressed the facts by showing the reduced value in the ST-3 returns and without showing the other details including the relevant notification with an intention to evade payment of service tax resulting in short-payment of service tax. Hence a statement of demand dated 22.4.2013 was issued. Earlier to this, the appellant had committed the same mistake, on being pointed out the appellants had paid the differential service tax but they did not pay the due interest thereon, for which a Show Cause Notice dated 331.5.2010 was issued. On the other hand, the appellant had filed a refund claim for the differential tax paid by them. The adjudicating authority had rejected the refund claim and demanded the due interest in two different orders. Against those orders, the appellant had filed an appeal with Commissioner (Appeals) and both were rejected vide Order in Appeal dated 13.12.2011. Against that, the appellant had filed an appeal before the Tribunal. In these circumstances, the adjudicating authority has issued Show Cause Notice for further period for similar mistakes made by them repeatedly and the demand of service tax was confirmed vide Order in Original dated 24.10.2013. After due process of law, the original authority confirmed the demand of service tax of Rs.2,97,920/- along with interest and imposed equal penalty under sec. 78 of the Finance Act, 1994. Aggrieved against the said order, the appellant filed appeal before Commissioner (Appeals) who vide the impugned order upheld the same. Hence this appeal.

No cross-objection has been filed by the respondent-department.

Shri N. Viswanathan, learned counsel appeared for the appellant and Shri R. Rajaraman, learned Assistant Commissioner (AR) appeared for the respondent.

Shri N. Viswanathan learned counsel submitted that the short point involved in the above appeal is whether they are liable to pay service tax under the category of Management and Repair Service in respect of the service of repaid carried out to photocopier machines, projectors, laser printers etc. This involves replacement of parts pertaining to the 70% of the value on which they had discharged appropriate VAT during the period October 2008 to March 2009. The reason stated by the department to demand duty was that their invoices did not show the value of the parts separately so as to meet the requirements of Notification No. 12/2003-ST. The learned counsel submitted that this issue is no longer res integra since the identical issue in the previous proceedings concerning the earlier period has been allowed by the Tribunal vide Final Order No. 42249 & 42250 of 2018 dated 7.8.2019. He prayed that the present appeal may be allowed by setting aside the impugned order.

Shri R. Rajaraman, learned AR supported the findings in the impugned order.

We have heard both sides and perused the records. We find that the same issue for the period up to September 2008 is covered by Final Orders N0 42249-42250/2018 dated 07/08/2018 by a Coordinate bench of this Tribunal, wherein it was held that when the assessee has paid tax under the State statute on the value of component of material used, service tax would be exigible only on the remaining value of services provided and allowed the appeal. The impugned order covers the period October 2008 to March 2009 on identical facts. We do not find any reason to deviate from the said order. We hence concur with the same and set aside the impugned order with consequential relief, if any, as per law.