- (1.) We have heard Shri A.P. Mathur, learned Counsel appearing for the appellant. Shri Ashok Singh appears for the respondents. In pursuance to the order dated 19-11-2013, a correction application has been filed to prefer the appeal through Telecom District Manager, Banda, instead of Chief Accounts Officer. The application is supported by the affidavit of Shri B.K. Gupta, Telecom District Manager, Banda. The Counsel has filed a vakalatnama on his behalf. The application is allowed. Let the correction be made. The vakalatnama is taken on record.
(2.) By an adjudication order dated 13-4-2012 a demand of Rs. 22,29,549/- and penalty of an equal amount of Service Tax was raised against the appellant. The CESTAT found that neither in response to the show cause notice nor before the adjudicating authority the appellant had contended that Rs. 22,29,549/- is not liable to be remitted as Service Tax, since the amount was not received during the period in question. The CESTAT found that a new plea was raised for the first time in the application. It also found that Section 67 of the Finance Act, 1994 provides that if service is a taxable service chargeable to tax with reference to its value then such value shall, in a case where the provision of service is for a consideration in money, be the gross amount charged by the service provider for such service provided or to be provided by him. As the petitioner/appellant has charged his customers for the service provided during the relevant period in issue, prima facie, the liability to remit Service Tax does not appear to be contingent on receipt of the amount by the service provider.
(3.) Shri A.P. Mathur has drawn our attention to the amendment in Rule 6(1)(ii) in which the word "service is deemed to be provided as per the rules framed in this regard", was added by the Service Tax (Amendment) Rules, 2011 w.e.f. 1-4-2011 vide Notification dated 1-3-2011. He submits that w.e.f. 1-4-2011 the service will be deemed to be provided as per the rules and thus the billed amount or the charged amount has to be deposited by 5th day of the month immediately following the quarter in which the service is deemed to be provided as per the rules. In this case the assessment relates to the period prior to 1-4-2011.;