TaxTMI 
TaxTMI 
2024 (12) TMI 355
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....'. The appellant did not file ST-3 returns (STR), for the period from April 2015 to March 2016. Based on the Income Tax Return (ITR), obtained from the Income Tax Department, show cause notice (SCN) dated 27.4.2021 was issued on account of non-payment of service tax on the taxable services provided during the period 2015 - 16, demanding service tax of Rs.1,86,218/- under sec. 73(1) along with interest under sec. 75 of the Finance Act, 1994 and also for imposing penalty under sections 78 and 77(2) of the Act and penalty under Rule 7C of the Service Tax Rules, 1994. After due process of law, the original authority confirmed the entire demand along with applicable interest and imposed penalty under sections 77 and 78. Aggrieved by the order, t....
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....rs in order to invoke the extended period of limitation. The period of the relevant ST3 return filing pertains to April 2015 to March 2016 and the period of 5 years also ends with March 2021. Hence the show cause notice issued on 28.04.2021 is time barred. The show cause notice by itself is not maintainable as it is not based on a subjective satisfaction with regard to considering the true nature of services rendered by the assessee by the Ld. Original Authority. Therefore, the demand, penalty and interest as confirmed in the Order-In-Original and Order-In-Appeal is not maintainable. He relied upon a large number of Case Laws to substantiate their averments and prayed that the impugned order be set aside. 3.2 The Ld. AR has reiterated the ....
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....s on revenue to establish the blame worthy conduct of the appellant. This responsibility has not been discharged as the SCN itself is presumptively issued without an iota of enquiry / investigation and is hence faulty. I find that no purpose would be served in remanding the matter to the Original Authority to cure the breach of natural justice at this stage, since the grounds in the current notice are inadequate and inclusion of additional ground/ new ground would involve fresh investigation into facts, which cannot be permitted. 6. I find that a similar matter was examined by the Division Bench of this Tribunal at Mumbai in Commissioner of CGST & CE, Mumbai East Vs Mordern Road Makers Pvt Ltd., [Final Order No. 86160/2023, dated 28/07/202....
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....that the assesse has short paid calculated and pre-determined amount of service tax and then issue them a show cause notice calling for their explanation as to why the stated amount of service tax should not be recovered from them. The burden of proof is on Revenue to establish that the alleged service tax was short paid by the assesse. Unless such burden of proof is discharged by Revenue, such show cause notice cannot sustain. The preset show cause notice is totally presumptive. Further, the difference in turnover in ST-3 return and income tax return could be on account of non-taxable businesses. So, unless Revenue examines the reasons for the difference, it cannot demand service tax blindly on the basis of difference in the turnover refle....
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....rds and examine the objection raised with reference to the records and facts of the case and take a view whether there is a sustainable case for issue of Show Cause Notice. Such vital aspects of framing of charges have been missing in the present case. The charges in the Show Cause Notice have to be on the basis of books of account and records maintained by the assessee and other admissible evidence. The books of account maintained by M/s Sharma were not looked into for issue of above stated two Show Cause Notices. Therefore, the transactions recorded in the books of account cannot be held to be contrary to the facts. Therefore, we hold that the said Show Cause Notices are not sustainable. Since the said Show Couse Notices are not sustainab....