TaxTMI 
TaxTMI 
2026 (4) TMI 1276
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....e demand of service tax of Rs. 97,954/- under Section 73, interest under Section 75 and penalties under Section 77 & 78 of the Finance Act, 1994. 2. Briefly the facts of the present case are that the appellant is working as an actor in television serials has been regularly filing ST3 returns and paying service tax on receipt basis. During the financial year 2014-15, the appellant provided acting services exclusively to M/s. Shashi Sumeet Productions Private Limited, Mumbai and the said Production House deducted TDS on the professional fees paid to the appellant. The Department, on the basis of third-party information received from the Income Tax Department, observed a discrepancy between: (a) Gross receipts of Rs. 31,83,580/- re....
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....yond the statutory limit of approximately 15 months beyond the statutory deadline. He further refer to CBIC instruction which are binding on the adjudicating authority, whereby the CBIC vide instruction bearing F.No. 280/45/2015-CX dated 17.09.2015 has directed the field formation to pass adjudication orders within time limits as prescribed under the Central Excise Act, 1944 and Finance Act, 1994. The learned counsel also refer to the certain judgments holding that Circulars are binding upon all the field formation and the adjudicating authority and the impugned order passed beyond the statutory deadline is liable to be set aside. 4.1 The second ground raised by the learned counsel for the appellant is that in this case, the Department h....
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.... 4.2 He further submits that in the present case the demand has been raised solely on the basis of income tax data/Form 26AS received from the Income Tax Department and without carrying out any independent verification, and without specifying the category of service under which the demand is raised. He further submits that ITR figures reflect amounts on accrual basis including amounts still receivable/due, whereas service tax under receipt basis is payable only on actual realization. Form 26AS reflect amounts on which TDS was deducted not amounts actually received in the relevant year. These are fundamentally different basis of accounting and the learned counsel also refer to CBIC instruction dated 26.10.2021 which specifically instructed....
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.... basis of 26AS statement, more so, when no ingredients for Invocation of extended period are present in the case. Therefore, we are of the considered opinion that no case has been made for invocation of extended period. Moreover, we find that in the instant case, the appellant is a GTA service provider wherein the service recipient is liable to pay service tax on Reverse Charge Mechanism. The Department failed to adduce any evidence to the effect that the appellants have rendered taxable service to the category of persons who do not fall under the category liable to pay service tax on RCM basis and this appropriate tax requires to be paid by the appellants themselves. In the absence of the same, the benefit of doubt has to be given to the a....
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.... Machine Tools Manufacturers Association Vs. Commissioner of Central Excise, Panchakula vide Final Order No. 60403/2023 decided on 18.09.2023 and Shreejee RMC Private Limited Vs. Commissioner of CGST & C.E., Rohtak vide Final Order No. 60233/2024 decided on 14.05.2024 has examined this issue and has held in para 11 which is reproduced herein below: 11. Coming to third and final issue as to whether any demand can be sustained on the basis of difference between the figures of ST-3 Returns and the balance sheets, we find that it is a settled principle of law that service tax can be levied only when there is a clear Identification of service provider, service recipient and consideration paid for the same. In the absence of any such evi....
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....xable service. Clause (44) of Section 65B of Finance Act, 1994 has provided for definition of service and it has elaborately dealt with a list of activities which shall not be included in such definition. Further, Section 66D of Finance Act, 1994 has provided for negative list of services where the activities covered by such negative list do not qualify to be a taxable service. Therefore, it is clear that while determining value of taxable service under Section 67 ibid, such aspect as to the activities which are covered by negative list and which are mentioned in the definition of service as those which are not covered by such definition become important. Therefore, we come to a conclusion that for arriving at amount of service tax not paid....