An Adjudicating Authority must strictly adhere to the remand directions of a Tribunal for re-quantification of tax demands; a mechanical re-confirmation of a previous order without actual re-evaluation of evidence or application of specific rules is legally unsustainable.

P.K. CHOUDHARY:

The present appeal has been filed by the Appellant assailing the de-novo Order-In-Original No. 03-Comm-ST-GZB-20-21, dated -27.01.2021 passed by Commissioner, CGST & Central Excise, Ghaziabad.

2. We find from the records that vide the earlier Order-In- Original dated 13.02.2017 the learned Commissioner had passed the following order :-

“4. I have carefully gone through the facts of the case, the allegations made in the SCN, the submissions made by the party and the evidence on record. I find that the taxability of the services, and the fact that the party had already paid Rs.1.50 Crore, as their self-assessed service tax liability for the period under consideration as is also mentioned in the show cause notice is not in dispute. The details of the service tax already paid by the party are given in the Annexure A to the show cause notice. The amount of service tax as determined/ assessed, and paid by the party, has, therefore wrongly been included for the demand of service tax under section 73 (1) of the Act. In case any amount of service tax, as self-assessed by the party, was not paid, the same was required to be recovered by taking recourse to the provisions of Section 73 (1B) of the Act which also puts a bar on the issue of the show cause notice in respect of any such amount in default.

4.1 The party submitted, that for 2011-12 they provided services to M/s Amrapali Saphire Dev. Pvt. Ltd., and M/s Amrapali Silicon Pvt. Ltd for which they received an amount of Rs.3,83,302/- and Rs. 49,25,476/- respectively. They claimed exemption of Rs. 10 lakh under Notification No. 08/2008-ST dated 01.03.2008 and stated that they had not charged/received Service tax on the amount of Rs.3,83,302/- . The remaining amount of Rs. 49,25,476/- charged to M/s Amrapali Silicon Pvt. Ltd was, however, inclusive of service tax. The exemption claimed by the party is, therefore, admissible to the extent Rs.3,83,302/ only. On the remaining amount service tax needs to be calculated treating the amount as inclusive of the service tax.

4.2 For the year 2012-13, the party stated to have rendered ’Man Power Supply’ (’MPS’, short) service and claimed exemption/ abatement, in terms of the Notification No. 30/2012-ST, which required payment of 25% of service tax by them and remaining 75% by the service recipient under reverse charge mechanism. In this regard, on examination of the documents available on record, I find that the party was neither registered for providing MPS nor was this service mentioned in their ST-3 returns for 2012-13. Moreover, during investigation of the case, the party never revealed the fact before the department that they were providing MPS. Therefore, in absence of any documentary evidence, the submission/ claim of the party is found to be without substance, and therefore riot acceptable. The party further submitted that three receipts (total Rs.6,41,663/-) reflected in their 26AS for 2012-13, which were neither received by them nor they had issued any bill for the same should not be considered for calculation of service tax. They explained that the said amount represented the expenses incurred by the service receiver on their behalf. I, however, do not find any material evidence having been put forth by the party in support of their submission/ claim. Moreover, the expenses incurred by the service receiver on their behalf were nothing but a consideration flowing from the service receiver to them and, therefore, the same was includible in the taxable value. I, therefore, hold that service tax was payable on the amount of Rs. 2,69,49,667/- received during 2012-13, as shown in Form 26AS, considering the same as inclusive of service tax.

4.3 For the year 2013-14, it was stated that the amount shown in Form 26AS. received up to 31.01.2014, was inclusive of service tax as per the practice of trade. Since 01.2.2014, however, in compliance of CBDT Circular No. 01/2014 dated 13.01.2014, the amount mentioned in Form 26AS