TaxTMI 
TaxTMI 
2020 (2) TMI 815
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....it. However, taking note of the submission of Mr. Chopra that he would have no objection if the appellant is allowed to assail the common judgment and order passed by the learned CESTAT by filing a composite appeal, the issue of maintainability of the appeal stands resolved and therefore, we proceed to dispose of the appeal on merit. 4. The facts leading to the institution of the appeal, briefly stated, are as follows:- The Finance Act, 1994 had introduced the provision for realizing service tax. Accordingly, some of the services provided by the Secondary Switching Area (SSA) under the BSNL fell within the purview of the Act of 1994 and therefore, were liable to be taxed @ 5% on gross receipt. On 28-03-2003, the Deputy Commissioner, Central Excise, Guwahati had issued a Show Cause notice addressed to the respondent Bharat Sanchar Nigam Limited (BSNL), Assam Circle, Guwahati and four of its SSAs demanding a sum of Rs. 3,47,49,000/- being the shortfall of service tax recoverable from the department in terms of Section 73(a) of the Finance Act, 1994 as well as for realization of interest and penalty as per the provision of the said act. In the Show Cause notice dated 28-03-2003,....
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....tting aside the order passed by the Commissioner of Central Excise and allowing the appeal filed by the respondent. There is, however, no mention in the said order as to the fate of the appeal preferred by the appellant. Aggrieved thereby, the present appeal has been filed. 9. This appeal was admitted by the order dated 22-11-2019 to be heard on the following substantial questions of law: "Whether the appellant court was correct in accepting the contention of the respondent BSNL that service tax is leviable on the actual receipts and not the gross receipts." 10. Mr. Keyal, learned ASGI has argued that confusion, if any, in the Show Cause notice dated 28-03-2003 was created purely on account of non-cooperation of the BSNL authorities inasmuch as, when the assessing officers had examined the books of account and records so as to assess the actual taxable receipt of the services coming under the purview of Finance Act, 1994 for the purpose of recovery of service tax, such documentary evidences were not made available to the officials so as to correctly assess the amount of taxable receipt. However, submits Mr. Keyal, even if it is assumed that the Show Cause notice date....
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....e dated 28-03-2003 also fails to give specific particulars as to the gross receipts of the respective SSAs which were found to be taxable. From the Show Cause notice dated 28-03-2003, it is not possible for this Court to infer that the "non-taxable services" had been excluded from gross receipts for the purpose of computing the tax component. On the contrary, it appears that the demand pertaining to those four SSAs had been clubbed together and the Show Cause notice has been served upon the Chief General Manager, BSNL, Assam Circle, Guwahati on a lump sum basis merely because he happens to be the apex administrative authority of the BSNL for the Assam Circle. 14. What is to be noted herein is that in the Show Cause notice dated 28-03-2003, the Central Excise Department is alleging evasion of service tax and is also seeking to realize interest besides levying penalty. There is no dispute about the fact that for the purpose of recovering service tax, each SSA was to be treated as an independent entity. Therefore, it was incumbent upon the department to furnish SSA wise specific particulars of the default so as to enable the noticee to suitably respond to the allegation brought aga....
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.... 17. From a careful analysis of the impugned order dated 13-12-2018, we find that the learned CESTAT had carried out the assessment of the service tax payable by the department on the basis of re-conciliation of the account produced before it for the first time by the BSNL and thereafter, upon obtaining certificate from an independent Chartered Accountant, it has determined the service tax component payable by the respondent. In other words, by the impugned order dated 13-12-2018, the learned CESTAT had for the first time carried out assessment of the tax liability of the respondent on the basis of the documents and records made available before it and thereafter, arrived at a conclusion that the impugned order dated 28-08-2008 was not sustainable in law. 18. Section 35C of the Central Excise Act, 1944 confers jurisdiction upon the Appellate Tribunal to pass such orders which are indicated therein, including orders confirming, modifying or annulling the decision or order appealed against. However, Section 35C of the Act of 1944, does not confer any jurisdiction upon the learned Tribunal to carryout assessment of the tax liability and records its own conclusion on that behalf. Th....