TaxTMI 
TaxTMI 
2025 (6) TMI 1358
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.... the Revenue that the appellant had not paid appropriate Service Tax during the period under dispute. It also appeared to the Revenue that the appellant had failed to submit any document to show that the amounts so received were from services which fall under the Negative List or covered under any of the entries mentioned in the Mega Exemption Notification No. 25/2012-S.T. dated 20.06.2012. Thus, it appeared to the Revenue that the amounts received by the appellant were considerations received towards rendering of taxable services for which appropriate service tax was not paid by the appellant. 3. Accordingly, a Show Cause Notice dated 16.04.2019 was issued to the appellant proposing to demand Service Tax of Rs.5,54,77,142/- (inclusive of cesses) for the period from April, 2013 to March, 2017. 3.1. The said notice was adjudicated by the Principal Commissioner of C.G.S.T. and Central Excise, Patna-I Commissionerate vide the impugned Order-in-Original No. 12/ST/Ayukt/2023 dated 15.03.2023 wherein the ld. adjudicating authority has confirmed the demand of Service Tax of Rs.5,54,77,142/- (inclusive of cesses), along with interest and imposed an equal amount of tax as penalty under Se....
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....994. Thus, the Ld. Counsel for the appellant contends that the documents submitted by the Department itself clearly reveal that the impugned Show Cause Notice was not served to the appellant, until 30.12.2022 when the said Notice was finally communicated via e-mail. 5.1.2. In view of these submissions, the Ld. Counsel for the appellant submits that the Show Cause Notice pertaining to the period from 2012-13 to 2015-16 served on 30.12.2022, is beyond the period of five years and hence the Notice is void abinitio. Thus, the appellant submits that the demand confirmed on the basis of this Show Cause Notice is legally unsustainable and liable to be set aside. 5.2. It is the submission of the appellant that the services provided by them are specifically exempt as per clauses 12, 13(a) and 14 of the Mega Exemption Notification No. 25/2012-S.T. dated 20.06.2012; however, the impugned order has confirmed the demand on the basis of the figures mentioned in Form 26AS and Profit & Loss Account of the appellant without investigating into the nature of the income shown in Form 26AS or the reasons for non-payment of Service Tax. The appellant contends that they are eligible for the benefit of ....
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....is his submission that the ld. adjudicating authority had no alternative but to consider the other documents like Form 26AS and Income Tax Returns to arrive at the Service Tax liability and accordingly, the impugned demand has been confirmed on the basis of the appellant's own documents. Thus, the Ld. Authorized Representative of the Revenue contends that the demand of duty, along with interest and penalties, confirmed in the impugned order, are sustainable. 7. Heard both sides and perused the appeal records. 8. We have taken note of the contention raised by the appellant as regards non-receipt of the Show Cause Notice dated 16.04.2019 until 30.12.2022. In support of this claim, the Ld. Counsel appearing for the appellant has referred to the letter dated 23.04.2025, submitted by the Department, offering comments on the relied upon documents submitted by the appellant. We have perused the said letter dated 23.04.2025 submitted by the Department wherein, in the response offered comments to "Para(3.1 & 3.2)", wherein it has been mentioned as under: - "Para(3.1 & 3.2):- As per case record, the Show Cause Notice issued vide C.No. V(88)Patna(Central)/SCN Cell/Adjn(H)/2019/5835 dated ....
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...., summons, etc. - (1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served, - (a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due [or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963)] to the person for whom it is intended or his authorised agent, if any; (b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; (c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice." (Emphasis supplied) 8.1.1. Thus, we find that the Show Cause Notice is to be affi....
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....egistered email id as [email protected] and registered Mobile No. 8271871939 is also found mentioned. Therefore, a fresh date of personal hearing date was fixed to be held on 11.01.2023 which was communicated/sent vide letter dated 30.12.2022 on the address shown as principal place of business. The noticee vide their letter dated 10.01.2023 sought adjournment for one month on the pretext of collection of documents. A new mobile number 9431018635 was also found mentioned on the letter dated 10.01.2023. Fresh date of personal hearing was granted vide letter dated 30.01.2023 for personal hearing to be held on 08.02.2023 and was sent on both addresses, however, no one again appeared for personal hearing. Due to non response from the noticee, third and final date of hearing was fixed on 06.03.2023 which was communicated vide letter dated 16.02.2023 and was also sent on the registered email id as [email protected]. The noticee were also contacted/informed on the registered Mobile No. 8271871939 and 9431018635 but again the noticee preferred to abstain. I thus find that sufficient opportunity has been provided to them in terms of Section 33A of the Central Excise Act, 1944, made....
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....d 26AS statements of the Appellant is legally not sustainable. We are of the view that the demand confirmed only on the basis of the details available in the Income Tax Returns and Form 26AS without any investigation, is not sustainable. We find that this view has been taken by this Tribunal in the case of M/s. Luit Developers Pvt. Ltd. v. Commissioner of C.G.S.T. & Central Excise, Dibrugarh [Final Order No. 75120 of 2022 dated 23.02.2022 in Service Tax Appeal No. 75792 of 2021 - CESTAT, Kolkata] wherein this Tribunal has held that a demand cannot be raised merely on the basis of the data available in the Income Tax Returns or Profit & Loss Account alone; there must be corroborative evidence to substantiate the non-payment of Service Tax. The relevant paragraphs of the said decision are reproduced below:- "11. I also find force in the submission of the Ld Counsel for the appellant that figures reflected in Form 26AS cannot be used to determine Service Tax liability unless there is any evidence shown that it was due to a taxable service as held in Kush Constructions(supra). Also, figures shown to Income Tax authorities cannot be used to determine Service Tax as held in Synergy Aud....
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.... 10.1. Consequently, we hold that the demand of Service Tax of Rs.5,54,77,142/- confirmed in the impugned order, along with interest, is not sustainable and accordingly, the same is set aside. 11. We also observe that the demand has been raised against the appellant by invoking the extended period of limitation. It is a fact on record that the appellant has been registered with the Service Tax Department and has been filing their Service Tax Return for the period from October 2013 to March 2014 claiming 'nil' rate of duty. No objections were raised by the Department when the appellant filed such Returns. In case the Departmental entertained any objection regarding the nil rate of duty claimed by the appellant, it could have called for information as and when such Returns were filed by the appellant. In these circumstances, we are of the view that there is no suppression of fact with intent to evade payment of Service Tax established against the appellant in this case. Accordingly, we hold that the demand confirmed by invocation of the extended period of limitation is not sustainable. On perusal of the demand confirmed, we find that the period covered in the impugned order is from....