2026 (2) TMI 1110

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....Order No. 75470/2022 dated 11.08.2022 passed in Service Tax Appeal No. 75969/2021 by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Kolkata should be set aside. [3] The issue pertains to the appellant's decision to charge Service Tax on the works done by the respondent under various Government authorities, such as the PWD, Airport Authority of India, Indian Railways, etc for the period from 2014-2015 to 2017-2018. [4] The facts of the case in brief is that a show cause notice-cum-demand notice dated 21.01.2019 had been issued to the respondent by the appellant for payment of Service Tax under Section 67 of the Finance Act, 1994, by basing its claim under the returns provided in Form 26AS of the Income Tax Act for the p....

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....order dated 22.10.2021 passed by the Principal Commissioner, CGST was thus set aside. [6] The Principal Commissioner, CGST has accordingly filed the present appeal challenging the decision of the learned CESTAT, by proposing 3 (three) substantial questions of law in terms of Section 35(G) of the Central Excise Act, 1944, which are as follows:- 1. Whether the learned Tribunal was correct in holding that pre-show cause notice consultation is mandatory in view of Clause 5 of Circular No. 1079/03/2021-CX dated 11.11.2021? 2. Whether the service tax can be demanded on the basis of statement made in Form 26AS? 3. Whether the show cause notice dated 21.10.2019 was in violation of the instruction issued by CBIC? [7]....

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....otice. As such, in view of the decision of the learned Tribunal in Shree Kankeshwari Enterprise (supra), which the appellant's counsel submits that it does not have any issue with, the levy of Service Tax on the respondent by the appellant on the basis of the "26AS data", is palpably not permissible. Similar has been the view expressed by the Division Bench of the Gujarat High Court in the case of Nimeshbhai Gunvantbhai Patel vs. Union Of India, reported in (2024) 25 Centax 122 (Guj.). [9] With respect to whether a pre-show cause notice consultation was a necessity, prior to the proceedings for levy of Service Tax being demanded from the respondent, we would have to consider para 5.0 of the Master Circular No. 1053/2/2017-CX dated 10.03.....

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.... (d) suppressions of facts: or (e) contravention of any of the provision of the Central Excise Act, 1944 or Chapter V of the Finance Act, 1994 or the Rules made there under with the intent to evade payment of duties or taxes. [11] In the present case, the show cause notice was issued to the respondent on 21.10.2019 and the issue of payment of Service Tax had been finalized by the Principal Commissioner, CGST, Dibrugarh, vide order dated 22.10.2021, i.e., prior to the subsequent Circular dated 11.11.2021 and the clarification made thereunder. Further there is nothing in the show cause notice dated 21.10.2019, to show that the Service Tax sought to be levied upon the respondent, was due to fraud or collusion or willful mis-statem....