2024 (10) TMI 626 - AT - Service Tax

Revenue appeal dismissed as service tax demand based on tally data lacked corroborative evidence

The CESTAT Allahabad dismissed the revenue's appeal challenging a Commissioner (Appeals) order that set aside a service tax demand based on tally data. ... Demand of Service Tax made on the basis of tally data resumed by the department - cogent reasons have been provided for doubting the authenticity of the records or not - principles of natural justice - HELD THAT:- It appears that the appeal have been filed only by referring to the order in original and for the reason that the appellate authority has set aside the same. No specific reason has been stated as to why the findings recorded by the appellate authority are not tenable, except to effect that the case law referred by Commissioner (Appeal) were in relation to the clandestine clearances of goods and hence should not have been applied. The Commissioner (Appeals) has decided the matter before him by holding that there are no corroborative evidences available on record to establish the case made out against the Respondent on the basis of second set of data retrieved. In absence of any such averment, there are no merits in this appeal. It is incorrect to say that the judgment relied upon by Commissioner (Appeals) while deciding the appeal, were in respect of the goods and not in respect of services. There are no infirmity in the order of the Commissioner (Appeals) to this extent - Appeal filed by the revenue is dismissed. Issues Involved:1. Validity of Service Tax demand based on tally data and statements.2. Lack of corroborative evidence for alleged service tax evasion.3. Wrongful imposition of penalty under Section 78A.4. Applicability of service tax on room rent and sale of liquor.5. Maintenance of two sets of accounts and alleged tax evasion.6. Invocation of extended period for demand.Detailed Analysis:1. Validity of Service Tax Demand Based on Tally Data and Statements:The tribunal examined the demand of Service Tax which was based on tally data and statements from the accountant of M/s M.P. The show cause notice (SCN) alleged that original billing was done under M/s M.P., while suppressed bills were recorded under appellant no. 2. However, the tribunal found that there was no basis for considering the figures maintained by M/s M.P. as accurate for the services provided by appellant no. 2. The tribunal emphasized that the SCN lacked cogent reasons to doubt the authenticity of the appellant no. 2's records, including audited balance sheets. Therefore, the tribunal concluded that the SCN suffered from serious deficiencies.2. Lack of Corroborative Evidence for Alleged Service Tax Evasion:The tribunal noted the absence of corroborative evidence to substantiate the allegations of service tax evasion. There was no mention of parallel invoices, money transactions, or confirmations from service recipients. The tribunal referenced the decision in R. A. Castings Pvt. Ltd. Vs CCE, Meerut-1, which emphasized the need for tangible, direct, and affirmative evidence in cases of clandestine removal of goods. The tribunal found that similar standards of evidence were applicable here, and in the absence of such evidence, the demand could not be sustained.3. Wrongful Imposition of Penalty Under Section 78A:The tribunal addressed the imposition of penalty under Section 78A, which applies to directors, managers, or officers of a company. It found that since the entity in question was a partnership firm, not a company, the penalty was not applicable. The tribunal cited the High Court of Mumbai's decision in Amritlakshmi Machine Works, which clarified that a partnership firm is not a juristic entity and penalties on partners cannot be imposed twice for the same offense. Consequently, the tribunal held that the penalty was not sustainable.4. Applicability of Service Tax on Room Rent and Sale of Liquor:The tribunal examined the demand of Service Tax on room rents where the tariff was less than Rs 1000/- and on the sale of liquor. It found that as per Notification No. 31/2011-ST, there is no service tax liability on room rent when the tariff is below Rs 1000/-. Additionally, the tribunal noted that VAT had been paid on the sale of liquor, making it exempt from service tax. The tribunal referenced the case of Imagic Creative Pvt. Ltd. Vs C Com Taxes, which held that service tax and VAT are mutually exclusive. Therefore, the tribunal found the demand unsustainable.5. Maintenance of Two Sets of Accounts and Alleged Tax Evasion:The tribunal considered the department's allegations that the respondent maintained two sets of accounts to evade service tax. It noted that the department failed to provide evidence to substantiate the claim that the second set of accounts was used for tax evasion. The tribunal emphasized the lack of evidence showing the use of the second set of accounts for any fraudulent purpose and found the allegations unsubstantiated.6. Invocation of Extended Period for Demand:The tribunal addressed the department's invocation of the extended period for demand, which was based on allegations of maintaining two sets of accounts and suppressing taxable services. The tribunal found that the department did not provide cogent reasons for invoking the extended period. It emphasized the necessity of concrete evidence to justify such an invocation, which was absent in this case.Conclusion:The tribunal dismissed the appeal filed by the revenue, finding no merit in the allegations of service tax evasion and setting aside the impugned order with consequential relief to the appellant no. 2. The tribunal upheld the findings of the Commissioner (Appeals) and found no infirmity in the order.