TaxTMI 
TaxTMI 
2024 (5) TMI 671
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....t the appellant is engaged in the business of manufacture and supply of Ready Mix Concrete to various projects; acting upon an intelligence received from DGARM, the appellant was asked to furnish details of the gross amounts received by them as shown in ST-3 returns and 26AS statements; investigation was conducted and a show cause notice dated 21.04.2022 was issued to the appellant demanding service tax of Rs.4,43,84,102/- along with interest and penalty; the proposal in the show cause notice was adjudicated vide the impugned order dated 26.12.2022 by the Commissioner of Central GST & Central Excise, Rohtak who confirmed the demand of service tax under Section 73(1) of the Finance Act, 1994 along with interest under Section 75 ibid and equa....
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....service tax is not sustainable. In this regard, he relies on the following judgments: • Agarwal Metal Works Pvt Ltd vs. Commr of CGST, Alwar - 2022 (65) GSTL 372 (Tri. Del.) • Osnar Chemical Pvt Ltd vs. Commr of C.E., Bangalore-II - 2009 (240) ELT 115 (Tri. Bang.) • Brindavan Bottlers Pvt Ltd vs. CCE & CGST, Lucknow - 2022 (58) GSTL 330 (Tri. All.) 3.3 The learned C.A. also submits that though the appellant has submitted the copy of the agreement and other documents to the Department, the adjudicating authority confirmed the demand of service tax by holding that no documents were submitted to satisfy that no service was provided by the appellant. 3.4 The learned C.A. submits in addition that the ....
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.... vs. CCE, Raipur - 2013 (288) ELT 161 (SC) • Simplex Infrastructure Ltd vs. CST, Kolkata - 2016 (42) STR 634 (Cal.) 3.5 The learned C.A. further submits that the duty was confirmed without giving the benefit of cum-duty which is due to the appellant. He also submits that demand has been confirmed wrongly taking the higher rate of duty of service tax. He also submits that in view of the fact that there is no suppression etc with the intent to evade the payment of duty, no penalty can be imposed. In this regard, he relies on the following judgments: • Global Vectra Helicorp Ltd vs. CST, Mumbai-II - 2016 (42) STR 118 (Tri. Mumbai) • Commr vs. Advantage Media Consultant - 2009 (14) STR J49 (SC) ....
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....ication of the service and what was the consideration received for the same. In the absence of specific service being identified, it is not open for the Department to assume that some service was made and therefore service tax is payable. This approach is not legally sustainable; it is the responsibility of the person alleging to prove the allegation with evidence; the Department failed to do so; moreover, an attempt has been made to confirm the duty of service tax on the basis of discrepancy in various statements and figures. It has been held in number of cases that such confirmation of tax is not legally sustainable. This bench in the case of M/s Indian Machine Tools Manufacturers Association (supra) has held as under: "11. Comin....
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....ugned order is set aside and the appeal is allowed. 12. We also find that Tribunal in the case of Indian Oil Corporation - 2020 (32) GSTL 350 (Tri. Kolkata) held that: 8. Having heard both the sides, we are of the view that the entire operation of transportation of the crude from Haldia port to BRPL is covered by a single contract. The terminal facilities are only intermediate operation of the transportation of the goods through pipeline. Since, the requisite amount of the service tax has already been paid on the service of transportation through pipeline provided by the respective parties, we feel that the terminal facilities being the integral part of the entire pipeline facilitating the transportation of the liquid crud....