TaxTMI 
TaxTMI 
2026 (8) TMI 155
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....y, at the applicable rates, on the amount of 294848/(Rupees Two Lakhs Ninety Four Thousand Eight Hundred Forty Eight Only) as mentioned at (i) above, under the provision of Section 75 of the Finance Act, 1994 read with Section 142, Section 173 and Section 174 of CGST Act, 2017. (iii) I impose a penalty of 294848/(Rupees Two Lakhs Ninety Four Thousand Eight Hundred Forty Eight Only) upon the party under the provision of Section 78 of the Finance Act, 1994 read with Section 142, Section 173 and Section 174 of CGST Act, 2017. The party shall be liable for reduced penalty specified in second and third proviso to Section 78 of the Finance Act, 1994, subject to fulfillment of conditions specified therein. (iv) I impose a penalty of 10,000 (Ten Thousands) only under Section 77(1)(a) of the Finance Act, 1994 read with Section 142, Section 173 and Section 174 of CGST Act, 2017. (v) I impose a penalty of 10,000 (Ten Thousands) only under Section 77(1)(b) of the Finance Act, 1994 read with Section 142, Section 173 and Section 174 of CGST Act, 2017. (vi) I impose a penalty of 10,000 (Ten Thousands) only under Section 77(1)(c) of the Finance Act, 1994 read wi....
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....not be demanded and recovered from them under the proviso to the Section 73 (1) of the Finance Act, 1994 read with Section 142, Section 173 and Section 174 of CGST, 2017. (ii) Due interest on the amount of Service Tax mentioned at (i) above should not be demanded and recovered from them under Section 75 of Finance Act, 1994read with Section 142, Section 173 and Section 174 of CGST, 2017. (iii) Penalty should not be imposed upon him/them under Section 78 of the Finance Act, 1994read with Section 142, Section 173 and Section 174 of CGST, 2017 for failure to pay Service Tax and suppressing the facts and value of taxable service with intent to evade payment of Service Tax. (iv) Penalty should not be imposed upon them under Section 77 (1) (a) of the Finance Act, 1994 read with Section 142, Section 173 and Section 174 of CGST, 2017 for not taking registration. (v) Penalty should not be imposed upon them under Section 77 (1)(b) of the Finance Act, 1994 read with Section 142, Section 173 and Section 174 of CGST, 2017for not maintaining the proper records. (vi) Penalty should not be imposed upon them under Section 77 (1)c) of the Finance Act, 199....
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.... the instant case is to ascertain whether the value of services shown in ITR for the period 2016-17 of the appellant pertains to non-taxable services or not? 4.4.1 It is observed that appellant has shown Rs.19,65,650/ in the ITR for the period 2016-17 as value of services and it has been claimed that the same has been erroneously shown against the code of value of services instead of sale of goods/plants etc. In order to ascertain the factual correctness of the claim of the appellant, it is observed that all the documentary evidences in support of the activities done by the appellant needs to be examined. 4.4.2 The appellant has made available some documents like copy of Form 26AS for the period 2015-16, 2016-17 and 2017-18, copy of ITR along with P&L A/c for the period 2016-17, sample copy of cash memo's, copy of Running Bills of Tender No. Re/Tender/Civil/502/805 dated 07.06.2020, copy of registration and allotment of TIN under UPVAT Rules, details of registered dealer of Commercial Taxes department. 4.4.3 On going through the Form 26AS of the appellant, it is seen that no payments has been received by them during the period 2015-16, 2016-17 and 201....
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....same is consideration on account of taxable services under Section 65B(51) of the Act and leviable to service tax under Section 68 of the Act. Accordingly it is found that confirmation of demand of service tax of Rs.2,94,848/ on the taxable value of Rs. 19,65,650/- against the appellant for the period 2016-17 in the impugned order is proper and sustainable. 4.4.6 Further, it is observed that the appellant has failed to deposit the service tax liability of Rs.2,94,848/- during the period 2016-17 within the stipulated period of time limit, therefore they are also liable for payment of interest under Section 75 of the Act. 4.4.7 I find that under self-assessment procedure prescribed under the statute, the appellant were required to assess & pay their Service Tax liability correctly, whereas the non-payment of Service Tax could be detected only during the data received from the Central board of Indirect Taxes & Customs. The appellant had also not obtained service tax registration with the Department. Thus, I find that there was suppression of facts with the intent to evade payment of Service Tax, on the part of the appellant. Thus, I find that the suppression of facts....
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....r the High Court to indicate the reasons and also to spell out clearly as to the applicability of the decision to the facts of the case. There is always peril in treating the words of a judgment as though they are words in a Legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a difference between conclusions in two cases. 4.5.2 Similarly, the Hon'ble Supreme Court in the case of CCE, Bangalore vs. Srikumar Agencies 2008 (232) E.L.T. 577 (S.C.), inter alia, held, as under: Precedents Court decision not statute - Reliance thereon without discussion of facts Decisions not to be relied upon without discussing similarity of facts Judgments of courts not to be construed as statutes - Circumstantial flexibility, additional or different fact may make a world of difference between conclusions in two cases 4.5.3 In view of the above judicial pronouncement I find that mere citing of courts/tribunal judgment is not sufficient but applicability needs to be discussed explicitly." 4.3 I find that impugned order uph....
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....d "misutilizing" in the following statement found in the order of the Commissioner of Customs, Raipur in furtherance of its claim : "The noticee procured 742.51 kl of furnace oil valued at Rs. 54,57,357/- without payment of customs duty by misutilizing the facility available to them under Notification No. 53/97-Cus., dated 3-6-1997" 22. We are not persuaded to agree that this observation by the Commissioner, unfounded on any material fact or evidence, points to a finding of collusion or suppression or misstatement. The use of the word "willful" introduces a mental element and hence, requires looking into the mind of the appellant by gauging its actions, which is an indication of one's state of mind. Black's Law Dictionary, Sixth Edition (pp 1599) defines "willful" in the following manner :- "Willful. Proceeding from a conscious motion of the will; voluntary; knowingly; deliberate. Intending the result which actually comes to pass... An act or omission is "willfully" done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be do....
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....ise v. H.M.M. Ltd. (supra) has observed that in order to attract the proviso to Section 11-A(1) it must be shown that the excise duty escaped by reason of fraud, collusion or willful misstatement of suppression of fact with intent to evade the payment of duty. It has been observed : '...Therefore, in order to attract the proviso to Section 11A(1) it must be alleged in the show-cause notice that the duty of excise had not been levied or paid by reason of fraud, collusion or willful misstatement or suppression of fact on the part of the assessee or by reason of contravention of any of the provisions of the Act or of the Rules made thereunder with intent to evade payment of duties by such person or his agent. There is no such averment to be found in the show cause notice. There is no averment that the duty of excise had been intentionally evaded or that fraud or collusion had been practiced or that the assessee was guilty of wilful misstatement or suppression of fact. In the absence of any such averments in the show-cause notice it is difficult to understand how the Revenue could sustain the notice under the proviso to Section 11-A(1) of the Act.' It was held that th....
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.... Income Tax Returns and in Form 26AS. Revenue takes the stand that in the Negative List regime, Department is not obliged to prove the provision of a particular service to demand service tax and further, the Appellants could not explain that the difference satisfactorily. I find that this is not the correct approach; exigibility to service tax depends on the service provider, service rendered, service recipient and the consideration thereof. Unless these four elements have been connected logically, demand of service tax cannot be confirmed merely on the basis of figures reflected in other statutory records. Be it pre or post-Negative List regime, the Department is under obligation to prove that the Appellants have rendered such and such service and to such and such persons and that the consideration was received towards the rendering of such service. Without doing the same, demand merely on the basis of figures does not survive. 8. I find that Tribunal has been continuously holding that such demands are not sustainable. I find that Chandigarh Bench of this Tribunal in the case of Indian Machine Tools Manufacturers Association Vs. CCE, Panchkula (supra) held as follows: ....
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....t raise the demand on the basis of merely differences without establishing that the entire amount received by the appellant as reflected in form 26AS is consideration for services provided because it is also not proper to presume that the entire differential amount was on account of consideration for providing services without verifying it. It is the specific case of the appellant that the amount shown in Form 26AS by the service recipient have not been received by the appellant. I also agree with the submission of learned Counsel that the burden to prove the allegations is upon the department that the appellants have received the extra payment on which the TDS of Rs.3,74,121/-(since form 26AS reflects TDS) has been deducted by the service recipient. My aforesaid view is also supported by the decision of the Tribunal in the matter of Qwest Engineering Consultant Pvt. Ltd. v/s Commissioner CGST, Central Ex. Allahabad; 2022 (58) GSTL-345 (Tri-All.)in which the co-ordinate Bench of the Tribunal has held that form 26AS is not a statutory document for determining the taxable turnover under the Service Tax as form 26AS is maintained on cash/receipt basis by the Income Tax department for ....