TaxTMI 
TaxTMI 
2022 (7) TMI 656
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....ishchandra Somani Director of M/s Forward Resources Pvt. Ltd. was recorded wherein he stated that Shri Suneet Kabra was the Director of the Appellant. Statement of Suneet Kabra was also recorded. The Investigation revealed that appellant was engaged in trading as well as providing commission services. They had received the commission/brokerage amount. Investigation also revealed that Appellant have availed the cenvat credit without having any corroborative evidence. Accordingly, show cause notice dated 14-5-2018 was issued proposing the Service tax demand alongwith interest, penalty and disallowance of Cenvat Credit. The Additional Commissioner, Surat vide Order-In-Original No. 45/ADJ/ADC-KSM/OA/2017-18 dated 27.03.2018confirmed the demand of service tax and disallowed the Cenvat Credit. Being aggrieved, the appellant filed an appeal before the Commissioner (Appeals) who by impugned order-in- appeal dated 01-11-2018 upheld the order passed by the Additional Commissioner and dismissed the appeal. Aggrieved by the impugned order-in- appeal present Appeals has been filed. 3. Shri Jigar Shah, Learned Counsel along with Shri Ambarish Pandey, Advocate appearing on behalf of the appell....
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....uh Pharma Ltd., Calyx Chemicals & Pharmaceuticals Ltd., Farmson Pharmaceutical Gujrat Pvt. Ltd., Supreet Chemicals Pvt. Ltd. are chargeable to service tax under the reverse charge mechanism. The Applicable Service tax liability is to be discharged by the clients of the Appellant and therefore, no service tax liability can be fastened against the Appellant. 3.3 He submits that the impugned order failed to consider that the show cause notice invoked wrong provision of the Finance Act, 1994 to demand Service tax. The demand of Service tax should have been proposed under Section 73A of the Finance Act, 1994 and not under Section 73. Therefore, there can be no demand of Service tax as the impugned order is passed without jurisdiction and hence liable to be quashed and set aside. He placed reliance on the following decisions : • Checkmate Industries Services Vs. CCE, Pune -III, 2016 (44) S.T.R. 290 (Tri. -Mumbai) • M/s Fusion India Inc V. CCE & ST., Lucknow- 2018 (11) TMI 358 -CESTAT Allahabad. 3.4 He also submits that the show cause notice proposes to recover service tax amounting to Rs. 1,16,59,641/- under Section 73 of the Finance Act, 1994 which is the....
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....t. 3.7 He further submits that demand of service tax is based on the definition of Services existed prior to 01.07.2012. However, the entire period of dispute in the present case is falling on or after 01.07.2012. The demand of service tax on the definition based in erstwhile regime cannot be confirmed. The show cause notice has failed to analyse the transactions properly and mechanically raised the demand of Service tax. He placed reliance on the following decisions: • Maharashtra Industrial Development Corporation 2014 (36) STR 1291 (Tri.- Mum) • Frisco Foods Pvt. Ltd. Vs. CCE, Dehradun 2022-VIOL-49-CESTAT-Del- ST 3.8 As regard the cenvat demand he submits that the Ld. Adjudicating authority has observed that Appellant are not entitled for the Cenvat Credit amounting to Rs. 11,34,259/- shown by them in their ST-3 returns. However, due to some difficulty on the part of the Director of the Appellant, they could not file their reply to show cause notice and no evidences such as documents/copy of invoices/cenvat credit register etc. could be placed for the consideration of the Ld. Adjudicating authority. He produced the copies of the invoices and CENVA....
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.... on the part of the assessee to suppress the facts from the Department with an intention to evade payment of Service tax. He placed reliance on the following decisions: • Padmini Prodcuts Vs. CCE 1989 (43) ELT 195 (SC) • CCE Vs Chemphar Drugs & Liniments 1989 (40) ELT 276 (SC) • Gopal Zarda Udyog Vs. CCE 2005 (188) ELT 251 (SC) • Lubri -Chem Industreis Ltd. Vs. CCE 1994 (73) ELT 257 (SC) • Anand Nishikawa Co. Ltd. Vs. CCE 2005 (188) ELT 149 (SC) 4. Shri R.P Parekh, Learned Superintendent (Authorized Representative) appearing on behalf of the revenue reiterates the finding of the impugned order and submits that Appellant have filed fresh and new evidences before the Bench by submitting for the first time i.e. Cenvat Documents, GTA Vouchers /Consignment Notes, Affidavit in reply dated 04.02.2022 of Director along with its Annexures, following of natural justice and non-following of procedure as per Section 9D, submission of Debit Notes of GTA, Authenticity of invoices of truck hired of Rajasthan Goods Carriers and Vaibhav Roadways and demand can be made for extended period or not as submitted by appellant. New ground....
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....hemicals Pvt. Ltd., Farmsons Pharmaceuticals Guj Pvt. Ltd., Supreet Chemicals Pvt. Ltd. and M/s Alkem Laboratories Ltd. in their affidavit. All the service recipient of the Appellant have admitted to have paid the service tax along with value of service. The appellant suppressed the material facts to the Department and therefore extended period of limitation will be applicable. 5. We have gone through the submissions made by both sides and perused the case records. The dispute in the issue relates to the fact also arise that when the appellant had not submitted any reply before the adjudicating authority and not submitted documents / records and additional evidences before the adjudicating authority, can it do so before the appellate tribunal in their support?. The Ld. Departmental representative strongly argued that Appellant have filed fresh and new evidences before this Tribunal by submitting for the first time. In this connection, we take note of the decision of the Hon'ble Supreme Court (Three Member Bench), in the case of National Thermal Power Co. Ltd. v. Commissioner of Income Tax, reported in 1998 (99) E.L.T. 200 (S.C.), which is to the effect that the Tribunal has juri....
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....d that additional legal grounds can be raised before any authority. The relevant para reproduced below: "11. On the basis of the aforementioned discussion, we are of the firm opinion that both, Commissioner (Appeals) and the Tribunal have committed error in not considering the additional grounds raised by the appellant before it. As it could be noted very clearly that these were the legal grounds which could have been raised at an stage before any authority as laid down in the decision rendered in case of Sanghvi Re- conditioners Pvt. Ltd. v. Union of India (supra) on which the Commissioner (Appeals) sought to rely upon and the said proposition hardly requires any further elaboration and yet both the authorities having failed to entertain these new legal grounds for which already the facts were existing on record, the appellant has succeeded in convincing us of a need to interfere with the orders of both the authorities by answering the question framed in its favour. 12. Resultantly, impugned orders of both the authorities are hereby quashed and set aside. Parties are requested to be relegated to the Commissioner (Appeals) for consideration of these issues afresh.....
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....cument in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence. In view of above Section 36A of Central Excise Act, 1944 it is only when such document is tendered in evidence against the person who produced the same or from whose custody or control it was seized that the presumption under Section 36A is available. In the present case admittedly none of the alleged invoices / documents was produced by the Appellant or seized from the Appellant's premises or control. In view of the above, when the presumption under Section 36A is not available, the burden of proof is squarely on the Department to prove that the source documents are related to the Appellants and that any taxable services under the source documents were actually provided by the Appellant. This burden has not at all been discharged in the present case. The department could not have simply accepted the customers' documents provided by them on its face value and the same needed strict corroboration which is completely absent in the present case. 5.3 Further, the Section 83 of the Act states that sections of the Central Excise Act 1944, as stipulated and in force....
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....se only after the statement is admitted in evidence in accordance with the procedure prescribed in clause (b) of Section9D(1). The rigour of this procedure is exempted only in a case in which one or more of the handicaps referred to in clause (a) of Section9D(1) of the Act would apply. In view of this express stipulation in the Act, it is not open to any adjudicating authority to straightaway rely on the statement recorded during investigation/inquiry before the Gazetted Central Excise Officer, unless and until he can legitimately invoke clause (a) of Section9D(1). In all other cases, if he wants to rely on the said statement as relevant, for proving the truth of the contents thereof, he has to first admit the statement in evidence in accordance with clause (b) of Section9D(1). For this, he has to summon the person who had made the statement, examine him as witness before him in the adjudication proceeding, and arrive at an opinion that, having regard to the circumstances of the case, the statement should be admitted in the interests of justice." In the present matter the Adjudicating Authority had failed to follow the requirement of Section9D of the Act regarding examination in....
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....ic Chemicals Pvt. Ltd., M/s Alkem Laboratories Ltd., M/s Calylx Chemicals & Pharmaceuticals Ltd., M/s Farmson Pharmaceuticals Gujrat Pvt. Ltd., M/s Lupin Ltd., M/s Anuh Pharma Ltd., M/s Mehta API Pvt. Ltd. and M/s Supreet Chemicals Pvt. Ltd.. We also find that in case of GTA service appellant are not liable for payment of Service tax as the service tax liability is on the service recepient. Other than GTA service, taxable services provided to M/s Sarna Chemicals Pvt. Ltd., M/s Chemiorganic Chemicals Pvt. Ltd. and M/s Farmson Pharmaceutical Gujarat Pvt. Ltd., Lupin Ltd., M/s Supreet Chemicals Pvt. Ltd. and Alkem Laboratories Pvt. Ltd. appellant in their Affidavit fairly agreed with liability of Service tax and on said taxable services also they already paid the Service tax well before investigation. 5.7 We also find that in the present matter for confirmation of service tax demand revenue also relied upon the TDS /26ASStatement. The said statement under provisions of Income Tax Act, 1961 is an Annual Consolidated tax statement. Income tax and service tax are two different/ separate and independent special Act and their provisions operate in two different fields. Therefore by rely....
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....ndigarh and Lucknow. The ST-3 return filed at Chandigarh and Lucknow did not tally with income-tax return filed in Jaipur office. 4. We have heard the AR who reiterated the grounds of appeal. None represented the respondent. 5. We find that Commissioner (Appeals) examined the respondents appeal against confirmation of demand and allowed the same mainly on the ground that income-tax return cannot be the basis for demanding Service Tax. Further, the respondent's contention that they have rendered services outside the jurisdiction of Rajasthan and have discharged the Service Tax in Chandigarh and Lucknow, could have been verified with the concerned jurisdictional Chandigarh Commissionerate office. Departmental authority at Jaipur have no jurisdiction to proceed against the respondent for demanding Service Tax without any evidence of taxable service being provided within their jurisdiction. We find that there is nothing in the grounds of appeal which makes us to interfere with the finding of the learned Commissioner (Appeals). The appeal did not advert to any assertion as to how the Service Tax demand can be made when there is no evidence to any taxable service having....