2023 (12) TMI 46

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....uthority has upheld the Order-in-Original. In the Orderin- Original, the Ld. Adjudicating authority has confirmed the service tax demand, including Cess, of Rs. 6,98,811/-along with interest and equal amount of tax as penalty. Penalty has also been imposed under Sections 77(1) (a),(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....

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....the Appellant relied on the 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....

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....ir contention that the Department has not adduced any positive evidence to show malafide intention or mens rea for evasion of Service Tax, under any particular head of Taxable Services. Accordingly, they argued that none of the ingredients necessary for invoking extended period of limitation as visualized under proviso to Sec. 73(1) of the Act exists in this case and hence the demand confirmed in the impugned order by invoking extended period of limitation is not sustainable. I find merit in the argument of the Appellant. In the case of Aban Lyod Chiles Offshore Ltd. vs. CCE reported in 2006 (200) ELT 370 (SC), the Hon'ble Supreme Court has held that when all the facts were already within the knowledge of the Department, invoking extend....