2023 (12) TMI 45

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....s upheld the Order-in-Original. In the Order-in- Original, the Ld. Adjudicating authority has confirmed the service tax demand, including Cess, of Rs. 6,68,989/-along with interest and equal amount of tax as penalty. Penalty has also been imposed under Sections 77(1) (b), (c) and 77(2) of the Finance Act, 1994. Aggrieved against the impugned order of the Commissioner (Appeals), the Appellant preferred this appeal. 2. The Appellant submits that the demand in the instant case is barred by limitation. It is their contention that the entire proceedings has been carried out on the basis of information available in Form 26AS of Income Tax department. Since these figures are included in the Profit/Loss Account in the Balance Sheet, which is a p....

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....e decision in the case of Kush Constructions vs. CGST NACIN reported in 2019 (24) GSTL 606 (Tri. All), wherein the CESTAT has held that "revenue cannot raise the demand on the basis of such difference without examining the reasons for the said difference and without establishing that the entire amount received by the Appellant as reflected in the said returns in the Form 26AS being consideration for services provided and without examining whether the difference was because of any exemption or abatement, since it is not legal to presume that the entire differential amount was on account of consideration for providing services." 4. The Appellant also relied on the decision of Tribunal, Kolkata, in the case of Luit Developers Pvt. Ltd. vs. ....

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....ound of limitation and not discussed issue on merits. Accordingly, they prayed for accepting the Affidavit and treat 17.01.2023 as the date of receipt of the OIO and remand the matter to the Commissioner (Appeals) to decide the issue on merits. 6. The Ld. A. R. submitted that the Commissioner (Appeals) has rejected the appeal filed by the Appellant on the ground of limitation, as the appeal was not filed within the time limit prescribed in Section 37C of the Central Excise Act, 1944 made applicable to service tax by virtue of Section 83 of the finance Act, 1994. Hence, he submits that the defect cannot be rectified and accordingly prayed for rejection of the appeal filed by the Appellant. 7. I find that the Commissioner (Appeals) has ....