Page 104 - GSTL_11th June 2020_Vol 37_Part 2

190 GST LAW TIMES [ Vol. 37
Penalty - Quantum of - Reduction of mandatory penalty to 25% in case
involving short payment of duty - Adjudicating Authority not having given
benefit of 25% penalty in writing in the adjudication order, Commissioner
(Appeals) legally correct in extending the benefit of 25% penalty - Section 78
of Finance Act, 1994. [para 9]
Appeals dismissed
CASES CITED
Bombay Intelligence Security (I) Ltd. v. Commissioner
— 2015 (38) S.T.R. 588 (Tribunal) — Referred ............................................................................. [Para 5]
Commissioner v. Commander Security Services — 2015 (39) S.T.R. 494 (Tribunal) — Referred .. [Para 5]
Commissioner v. R.A. Shaikh Paper Mills Pvt. Ltd. — 2010 (259) E.L.T. 53 (Guj.) — Relied on ... [Para 9]
Doon Security Services v. Union of India — 2014 (304) E.L.T. 342 (Uttarakhand) — Referred ..... [Para 5]
H.M. Singh and Co. v. Commissioner — 2015 (37) S.T.R. 172 (All.) — Referred .............................. [Para 2]
Industrial Security Associates v. Commissioner — 2013 (31) S.T.R. 489 (Tribunal) — Referred ... [Para 2]
New Industrial Security Force v. Commissioner — 2006 (3) S.T.R. 197 (Tribunal) — Referred .... [Para 5]
Panther Detective Services v. Commissioner — 2006 (4) S.T.R. 116 (Tribunal) — Referred ........... [Para 5]
Premier Security Enterprises v. Commissioner — 2009 (15) S.T.R. 735 (Tribunal) — Referred ..... [Para 5]
Punjab Ex-Servicemen Corpn. v. Commissioner — 2007 (5) S.T.R. 214 (Tribunal) — Referred..... [Para 5]
Rajasthan Ex-Servicemen Ltd. v. Commissioner — 2017 (52) S.T.R. 42 (Tribunal) — Referred ..... [Para 5]
Rajasthan Ex-Servicemen Welfare Cooperative Society Ltd. v. Commissioner
— 2018 (15) G.S.T.L. 328 (Raj.) — Referred .................................................................................. [Para 5]
Security Agencies Association v. Union of India — 2012 (28) S.T.R. 3 (Ker.) — Referred .............. [Para 5]
Sudharson Security Bureau v. Commissioner — 2008 (10) S.T.R. 304 (Tribunal) — Referred ....... [Para 5]
Young Brothers Transporters & Contractors v. Commissioner
— 2017 (6) G.S.T.L. 513 (Tribunal) — Referred ............................................................................ [Para 2]
REPRESENTED BY : S/Shri Naveen Gheewala, Consultant with Amal
Dave, Advocate, for the Assessee.
Shri T.K. Sikdar, Assistant Commissioner (AR), for
the Department.
[Order per : Ramesh Nair, Member (J)]. - The brief facts of the case are
that the appellant during the period 2001 to 2005-06 provided the security ser-
vices. They were paying service tax on the value of service i.e. only on the com-
mission (gross value minus salary, PF, ESI, etc.). The case of the department is
that the appellant are required to pay service tax on the gross amount including
salary of the security guards, PF, ESI, etc. Therefore, the demand of differential
service tax was raised invoking the extended period. In the impugned order the
Commissioner (Appeals) has extended the benefit of reduced penalty of 25% un-
der Section 78. Aggrieved with the said relaxation, the Revenue has also filed the
appeal.
2. Shri Naveen Gheewala, Learned Consultant along with Shri Amal
Dave, Learned Advocate appeared on behalf of the appellant and submits that
the appellant have rightly paid service tax on the service charges. The value on
which demand was raised is receipt of reimbursements towards Salary of Securi-
ty Guards, PF and ESI, which are actual expenses and the same was reimbursed
by the service recipient. Therefore, the same is not chargeable to the service tax.
He further submits that appellant, after taking registration, were regularly pay-
ing service tax on the net of salary, PF, ESI, i.e. on the actual service charges.
They were filing periodical returns to the department therefore, there is no sup-
GST LAW TIMES  11th June 2020  104