TaxTMI 
TaxTMI 
2026 (8) TMI 1752
X X X X Extracts X X X X
X X X X Extracts X X X X
....ax/CENVAT credit liabilities aggregating to Rs.60,00,93,724/-, together with applicable interest and various penalties thereon, were confirmed against the appellant, except to the extent of certain amounts appropriated/dropped upon verification of payments made by it. 2. The facts of the case are that the appellant is engaged in the business of providing Security Agency Services, falling under the applicable provisions of Section 65(105)(w) of the Finance Act, 1994, and had obtained service tax registration under STC No. AABCV0898FSTOO, with the registration particulars dated 10.09.2007. The appellant was operating its security-service business on a pan-India basis through various branch offices, including establishments at Noida, Gurgaon, Sonepat, Chandigarh, Ludhiana, Mumbai and Bangalore, while the Service Tax registration was initially associated with its premises at Jangpura, Delhi. The Department subsequently took the view that the appellant ought to have obtained appropriate registration particulars in respect of the various places from which it was carrying on its taxable activities. 3. The proceedings originated from a Service Tax audit conducted between 14.03.2011 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t towards discharge of service tax liability, such credit was not supported by the requisite statutory documents, including input-service invoices and CENVAT records. It was consequently alleged that the credit claimed was doubtful and incapable of verification. The cumulative allegation was that the appellant had failed to disclose its complete financial and operational particulars, had carried on taxable activities from various unregistered premises, had failed to discharge the correct Service Tax liability and had thereby suppressed material facts with intent to evade payment of Service Tax. 5. The aforesaid audit proceedings culminated in the issuance of Show Cause Notice No. 25/Audit/2011-12 dated 21.04.2011 covering the period from Financial Year 2005-06 to Financial Year 2009-10 (hereinafter, for the sake of convenience, referred to as "SCN-I"), proposing, inter alia, recovery of service tax on the taxable receipts alleged to have been suppressed by the appellant, together with applicable interest and penalties. The issues arising from the said notice constituted the foundational basis of the subsequent proceedings. Thereafter, on substantially similar allegations and on ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lusive of cesses) Section 72 Best Judgment Assessment based on pro-rated 1/4th of FY 2016-17 data plus 50% growth. Show Cause Notice No. 25/Audit/2011-12 dated 21.04.2011 (SCN-I) - Financial Years 2005-06 to 2009-10 6. The first of the proceedings arose from Show Cause Notice No. 25/Audit/2011-12, issued under C. No. I-26(494)ST/Audit/TFGL/GRAS/150/2010 dated 21.04.2011, covering the period Financial Years 200506 to 2009-10. The above Show Cause Notice arose out of a Service Tax audit conducted by the officers of the Service Tax Commissionerate, New Delhi from 14.03.2011 to 05.04.2011, under Rule 5A of the Service Tax Rules, 1994, for the period 2005-06 to 2009-10. During the course of the audit, the Department scrutinised, inter alia, the appellant's financial records, Profit & Loss Accounts, Total Revenue Summary, Financial Data Summary Sheets (FDSS), the "Profile of the Company" furnished by the appellant and other records placed before the audit team. 6.1. Reference was made to the appellant's Company Profile, wherein it had disclosed figures towards CENVAT credit allegedly availed and utilised and had stated that it was sub-contracting its operations and providing ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....09-10 was quantified at Rs.8,04,16,915/-, inclusive of Education Cess and Secondary & Higher Education Cess. The notice also alleged failure to file the prescribed ST-3 returns and proposed recovery under the applicable provisions of the Finance Act, 1994 and Service Tax Rules, 1994. The Department further alleged that the aforesaid discrepancies, including the particulars relating to taxable receipts, exempt services, CENVAT credit, unregistered operating premises and non-filing of returns, amounted to suppression of material facts with intent to evade payment of service tax, thereby warranting invocation of the extended period under the proviso to Section 73(1) of the Finance Act, 1994. 6.6. The appellant was accordingly called upon to show cause before the Commissioner of Service Tax, New Delhi as to why Service Tax amounting to Rs.8,04,16,915/- should not be demanded and recovered under the proviso to Section 73(1) of the Finance Act, 1994 read with the relevant provisions of the Act and Rules; why applicable interest under Section 75 should not be recovered; why penalty under Section 76 should not be imposed for failure to pay service tax; and why penalty under Section 78 s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ct that only the Jungpura premises was registered with the Department despite the appellant having offices/branches at various other locations. On the basis of these circumstances, the Department alleged that the taxable value had escaped assessment and that the appellant had suppressed material facts with intent to evade payment of service tax. 7.4. The notice accordingly proposed recovery of Service Tax amounting toRs.6,23,51,828/-under Section 73 of the Finance Act, 1994, read with the applicable provisions of Sections 66 and 68 and Rule 6 of the Service Tax Rules, together with applicable interest under Section 75. It further proposed imposition of penalties under Sections 76, 77 and 78 of the Finance Act, 1994 for the alleged failure to discharge the tax liability, non-filing of statutory returns and alleged suppression of material facts. Show Cause Notice No. 263/Div-I/2012-13 dated 23.10.2012 (SCN-III) - Financial Year 2011-12 8. For the Financial Year 2011-12, the Department issued Show Cause Notice No. 263/Div-I/2012-13 dated 23.10.2012, issued vide C. No. DL-1/ST/RI/SCN/Twenty Four/42/11/15310-15315 dated 23.12.2012, proposing recovery of service tax amounting to....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Demand-cum-Show Cause Notice No. 13/DivVIII/2016-17 dated 28.04.2016 (SCN-V) - Financial Years 2013-14 and 2014-15 10. Thereafter, the Department issued Demandcum-Show Cause Notice No. 13/Div-VIII/2016-17, issued vide C. No. DL-II/ST/DIV VIII/R40/TFG/36/2015/5542 to 5545 dated 28.04.2016, covering the period Financial Years 2013-14 and 2014-15. The notice proceeded on the basis of the provisions and alleged infractions set out in the preceding proceedings and was issued, inter alia, under the newly inserted sub-section (1A) of Section 73 of the Finance Act, 1994. An aggregate service tax liability of Rs.1,68,14,271/- was proposed, comprising Rs.1,23,97,840/-, inclusive of Education Cess and Secondary & Higher Education Cess, on account of alleged wrongful availment of exemptions, and Rs.44,16,431/- towards allegedly inadmissible CENVAT credit availed and utilised, besides applicable interest and penalties. 10.1. The proceedings originated from a letter dated 10.02.2015 issued by the Range Officer calling upon the appellant to furnish information for the Financial Year 2013-14. In response, the appellant, vide letter dated 23.02.2015, furnished certain documents, including th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... said period, since the underlying invoices and other supporting records necessary to establish the admissibility of such credit had not been produced. 10.4. On the aforesaid basis, the Department proposed recovery of Rs.1,23,97,840/- towards service tax, including applicable cesses, on the alleged wrongful availment of exemptions, and Rs.44,16,431/- towards allegedly wrong availment and utilisation of CENVAT credit, by invoking the extended period of limitation. The notice alleged contravention of the provisions of Sections 66/66B, 67 and 68 of the Finance Act, 1994 read with Rule 6 of the Service Tax Rules, 1994, besides the provisions relating to Education Cess and Secondary & Higher Education Cess. Accordingly, the notice called upon the appellant to show cause as to why the aforesaid Service Tax and CENVAT credit amounts should not be recovered together with applicable interest and the corresponding penalties under Sections 76, 77 and 78 of the Finance Act, 1994 and Rule 15 of the CENVAT Credit Rules, 2004 should not be imposed. Statement of Demand No. 15/2018 dated 02.04.2018 - (SCN-VI) - Financial Year 2015-16 11. For the subsequent period, i.e. Financial Year 2015-....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Department also alleged that, in the circumstances recorded in the notice, the appellant had failed to discharge the service tax liability in accordance with the applicable provisions of the Finance Act, 1994 and the Service Tax Rules, 1994. 11.4. Accordingly, the appellant was called upon to show cause as to why Service Tax amounting to Rs.19,74,97,900/-, inclusive of cesses, should not be demanded and recovered under Section 73(1A) read with the applicable provisions of Sections 68, 66A and 66B of the Finance Act, 1994 and Rule 6 of the Service Tax Rules, 1994, together with applicable interest under Section 75, besides imposition of penalties under Section 76 for failure to discharge the Service Tax liability, under Section 77 for failure to furnish the prescribed ST-3 returns, and under Section 78 on the allegation that the appellant had deliberately suppressed material facts with intent to evade payment of Service Tax. Statement of Demand No. 23/2018-19 dated 12.04.2019 (SCN-VII) - Financial Year 2016-17 12. In respect of the subsequent period, i.e. Financial Year 2016-17, the Department issued Statement of Demand No. 23/2018-19, issued vide C. No. DL-II/ST/DIV-VIII....
X X X X Extracts X X X X
X X X X Extracts X X X X
....-6, 2nd Floor, R.K. Puram, New Delhi. The DGGSTI, vide communication dated 26.03.2019, thereafter furnished the relevant documents/details available with it to the jurisdictional formation. The Department proceeded to quantify the Service Tax liability for the period in question on the basis of the material so received from the DGGSTI. On the ground that the appellant had not filed ST-3 returns for Financial Year 2016-17, and consequently that the provisions of Section 70(1) of the Finance Act, 1994 read with Rule 7 of the Service Tax Rules, 1994 were attracted, the Statement of Demand, covering the period 01.04.2016 to 31.03.2017, proceeded on the basis of the allegations contained in the original proceedings, as applicable mutatis mutandis to the relevant period. 12.4. On the basis of the documents and details obtained from the DGGSTI, the said Show Cause Notice quantified the Service Tax liability pertaining to the said period at Rs.1,27,40,568/- (inclusive of cesses), inclusive of applicable cesses, for Financial Year 2016-17 which was proposed to be recovered under Section 73(1A) of the Finance Act, 1994, read with the applicable provisions of Sections 66 and 68 of the Fina....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... furnished by the DGGSTI, R.K. Puram, New Delhi, vide its letter dated 26.03.2019. The taxable value for the period April to June 2017 was thereafter estimated by taking one-fourth of the preceding financial year's taxable value and applying a further 50% growth factor. On the basis of this methodology, the service tax liability for the period was quantified at Rs.45,21,625/-, inclusive of the applicable cesses. 13.4. The notice also recorded that the appellant had not furnished ST-3 returns for the period April 2017 to June 2017, and accordingly proposed penal action under Section 70(1) of the Finance Act, 1994 read with Rule 7 of the Service Tax Rules, 1994. It was further stated that the allegations and charges contained in the earlier proceedings, as applicable to the relevant period, would apply to the present proceedings mutatis mutandis. 13.5. Accordingly, the appellant was called upon to show cause as to why the provisions of Section 72 of the Finance Act, 1994 should not be invoked and why the service tax demand of Rs.45,21,625/- (inclusive of cesses) should not be demanded and recovered under Section 73(1A) of the Finance Act, 1994, read with the applicable prov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g Financial Year 2010-11, the adjudicating authority accepted the invocation of Section 72 and the best-judgment methodology adopted by the Department, holding that the appellant's alleged non-cooperation and failure to produce authentic financial records justified determination of the taxable value on the basis of the information available with the Department. The demand of Rs.6,23,51,828/- was accordingly confirmed in full, together with interest under Section 75. A penalty of Rs.62,35,183/- under Section 76, stated to represent 10% of the confirmed tax liability, and a further penalty of Rs.10,000/- under Section 77 were imposed. No penalty under Section 78 was imposed for this period. (iii) Adjudication of SCN-III: In respect of SCN-III, relating to Financial Year 2011-12, the adjudicating authority considered the returns and the cash payments subsequently verified on record and modified the original proposal. Against the proposed demand of Rs.9,35,27,741/-, an amount of Rs.2,61,80,826/- was dropped on account of service tax found to have been deposited in cash by the appellant, and the balance demand of Rs.6,73,46,915/- was confirmed. Interest under Section 75 was ord....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 77 were imposed. The Section 78 penalty was not imposed. (vii) Adjudication of SCN-VII: In respect of SCN-VII, pertaining to Financial Year 2016-17, the adjudicating authority relied upon the financial and transactional material forwarded by the DGGSTI on 26.03.2019 and rejected the appellant's objection regarding the parallel investigation. It was held that the appellant had failed to furnish an independent reconciliation or supporting records before the jurisdictional adjudicating authority. The service tax demand of Rs.1,27,40,568/-, quantified on taxable value of Rs.8,52,73,469/-, was accordingly confirmed in full, together with interest under Section 75. A penalty of Rs.12,74,057/- under Section 76 and a further penalty of Rs.10,000/- under Section 77 were imposed. No penalty under Section 78 was imposed. (viii) Adjudication of SCN-VIII: In respect of SCN-VIII, covering April 2017 to June 2017, the adjudicating authority upheld the invocation of Section 72 and the methodology adopted by the Department, namely, pro-rating the Financial Year 2016-17 turnover received from the DGGSTI to one quarter and applying the assumed 50% annual growth factor. The demand ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Tax confirmed: Rs.15,84,03,702/ -; Rs.99,46,232/- dropped; Section 76 penalty: Rs.1,58,40,370/-; Section 77 penalty: Rs.10,000/-; interest under Section 75 V Demand-cum- SCN No. 13/DivVIII/2016-17 dated 28.04.2016 FY 2013-14 & 2014-15 Total: Rs.1,68,14,271/, comprising Rs.1,23,97,840/- Service Tax and Rs.44,16,431/- CENVAT credit, with interest and penalties Service Tax: Rs.1,23,97,840/- confirmed; CENVAT credit: Rs.44,16,431/- confirmed; Rule 15 CCR penalty: Rs.44,16,431/-; Section 76 penalty: Rs.12,39,784/-; Section 77 penalty: Rs.10,000/-; interest under Section 75 VI Statement of Demand No. 15/2018 dated 02.04.2018 FY 2015-16 Service Tax: Rs.19,74,97,900 /- (incl. cesses), with interest and penalties Service Tax confirmed: Rs.19,74,97,900/ -; Section 76 penalty: Rs.1,97,49,790/-; Section 77 penalty: Rs.10,000/-; interest under Section 75 VII Statement of Demand No. 23/2018-19 dated 12.04.2019 FY 2016-17 Service Tax: Rs.1,27,40,568/- (incl. cesses), with interest and penalties Service Tax confirmed: Rs.1,27,40,568/-; Section 76 penalty: Rs.12,74,057/-; Section 77 penalty: Rs.10,000/-; interest under Section 75 VIII Statemen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....IOD: 2005-06 TO 2009-10) (i) The SCN dated 21.04.2011 covering the period 2005-06 to 2009-10 is wholly unsustainable in law as well as on facts and is liable to be set aside in entirety. The demand has been raised pursuant to a service tax audit conducted during 14.03.2011 to 05.04.2011, wherein the Department has compared various financial records of the Appellant, including audited financial statements (Profit & Loss Account), account ledgers and service tax challans submitted by the Appellant. (ii) In the Impugned SCN the Department has raised a demand of Rs. 8,04,16,915/- for the period 2005-06 to 2009-10 after deduction of the amount of service tax paid in cash amounting to Rs. 5,03,40,648/-, however, no benefit of CENVAT credit has been given to the Appellant. The bifurcation of the amount paid in cash and credit by the Appellant for each year is as under - Period Service Tax paid in cash Service Tax paid through CENVAT credit 2005-06 49,35,959.00 41,34,339.11 2006-07 62,10,241.00 58,37,984.00 2007-08 48,35,955.00 87,00,486.00 2008-09 1,41,70,378.00 1,21,25,955.00 2009-10 2,01,88,115.00 1,38,65,432.00 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to said figures. (v) It is further submitted that the rejection by the Department of the amounts pertaining to exempted and non-taxable services is wholly arbitrary and unsupported by any cogent evidence. The Department has merely made a bald assertion that no such services were provided by the Appellant, without undertaking any verification or independent enquiry to substantiate the same. The Appellant had specifically disclosed and claimed the value of exempted and non-taxable services on the basis of its audited financial statements and supporting records. These figures were neither examined in detail nor rebutted by the Department through any contrary material. In particular, the Department has failed to conduct any independent enquiry from the concerned clients or recipients of services to verify whether such services were in fact rendered or whether any service tax was collected by the Appellant in respect thereof. A mere blanket rejection without investigation cannot form the basis of a sustainable demand. In absence of any enquiry, verification or corroborative evidence, the conclusion drawn by the Department is based purely on assumption and is therefore liable t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....,876.00 ST Liability for the period 2005-06 to 2009-10 9,50,04,844.11 13,07,57,563.00 ST Paid in Cash 5,03,40,648.00 5,03,40,648.00 CENVAT credit adjusted 4,46,64,196.11 NIL ST payable NIL 8,04,16,915.00 (viii) It is submitted that the Department in the Impugned SCN has based the entire demand of service tax on the figures of ITR/audited PL without going into the details of the type of services provided by the Appellant. ITR/audited PL which is a public document clearly specifies the type of services provided by any taxpayer. The Ld. Adjudicating Authority could have easily seen from the ITR/audited PL filed by the Appellant that the Appellant was into the business of security agency services wherein major portion was that of exempted services, non-taxable services and reimbursement expenses. Further, all these financials were duly audited by a Chartered Accountant. The Ld. Adjudicating Authority in the Impugned SCN has not provided any basis for arrival at figures of net taxable value. (ix) It is further submitted that the Department has ignored the fact that merely going by the Balance Sheet/ITR figures to arrive at the taxabl....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Finance Act, 1994. c. Reimbursements would not attract service tax subject to various conditions but in many cases, the service recipient out of abundant caution would deduct tax at source. d. Where a transaction does not result in income, the service recipient would still deduct tax at source out of abundant caution factoring interest and disallowance provisions under the Income Tax Act. e. There are number of situations where there is excess tax deduction or erroneous tax deduction by the service recipient. f. For several transactions, service tax is payable by a service recipient under reverse charge mechanism whereas Form 26AS of the service provider would reflect the income and the tax deduction at source. (xi) It is a well-established law that no service tax demand can be raised only on the basis of income reflected in Profit and Loss Account /ITR- reliance has been placed on the decision of the CESTAT, Mumbai in the case of Umesh Tilak Yadav v. Commissioner of Central Excise, (2024) reported at 159 taxmann.com 336. (xii) It is further submitted that the very foundation of the impugned demand is contradictory and unsustai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....late fee or penalty which may extend to Rs. 10,000/- under Section 77 of the Act but cannot be equated with suppression of facts or intent to evade tax. The Appellant was regularly depositing service tax on a monthly basis, and such payments were within the knowledge of the Department. The financial records of the Appellant, including audited statements and tax filings, were available in the public domain and before various statutory authorities. In such circumstances, the Department could have examined the issue within the normal period of limitation. Non-filing of returns, by itself, cannot be construed as wilful misstatement or suppression so as to justify invocation of the extended period. (xvi) The entire demand in the present SCN has been raised by invoking the extended period under the proviso to Section 73(1) of the Finance Act, 1994, which is wholly untenable. The sine qua non for invoking extended limitation is the existence of fraud, collusion, wilful misstatement, suppression of facts or contravention of provisions with intent to evade tax. In the present case, the demand is admittedly based on turnover figures derived from audited financial statements and othe....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... b. When information is available in statutory records, it cannot be alleged that there was suppression of facts; (xxiii) The Impugned SCN is based on alleged discrepancies derived from audit findings; however neither the basis of computation has not been disclosed nor any supporting documents have been provided. Further, no reconciliation with actual financial records has been carried out by the Department. Therefore, in absence of any verifiable basis, the demand is arbitrary and cannot be sustained. (xxiv) It is further submitted that, even otherwise, a substantial portion of the demand is clearly barred by limitation even beyond the extended period of five years as contemplated under the proviso to Section 73(1) of the Finance Act, 1994. In the present case, the impugned SCN dated 21.04.2011 seeks to raise demand for the period 2005-06, which is ex facie beyond the maximum permissible limitation period of five years from the relevant date. Even assuming, without admitting, that the extended period is invocable, the Department could not have travelled beyond the statutory outer limit of five years. It is a settled principle of law that the extended period un....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... increases, while for later years, figures have been derived without any disclosed rationale, including adoption of peak turnover of previous years. Such an approach is inherently flawed and demonstrates that the assessment is based on conjecture rather than evidence. (iv) It is further submitted that the audited financial statements placed on record by the Appellant before the Ld. Adjudicating Authority have not been duly considered while passing the Impugned OIO. The Impugned OIO itself records, in Para 48.4, 48.5, 48.6 and 49.1.9, that the Appellant had furnished all relevant financial statements duly audited by a Chartered Accountant. Having acknowledged the existence and submission of such primary records, the Ld. Adjudicating Authority was duty-bound to examine the same and base his findings on such verified data. However, in a clear contradiction, while dealing with the invocation of Section 72 of the Act, the Ld. Adjudicating Authority has, in Para 58.2 of the Impugned OIO, proceeded on the erroneous premise that no such financial records were submitted by the Appellant. This inconsistency in findings goes to the root of the matter and renders the reasoning adopted....
X X X X Extracts X X X X
X X X X Extracts X X X X
....terial is otherwise available with the Department. The mere absence of returns does not justify discarding primary financial records and substituting them with hypothetical or estimated figures. (x) The law is well settled that best judgment assessment must be based on reasonable material and cannot be arbitrary. Even where such assessment is permissible, it must bear a rational nexus to the available evidence and cannot be founded on guesswork, presumption or extrapolation. In the present case, no such nexus is established. There is no correlation between the alleged taxable value and actual services rendered or consideration received. The Department has not undertaken any transaction-wise verification nor has it disclosed the basis of computation. (xi) The impugned demands, therefore, are not anchored in any verifiable evidence but are the result of speculative estimation. Such an approach is contrary to settled principles of taxation, which require that liability be determined on the basis of real income and actual transactions, and not on hypothetical assumptions. (xii) Reliance is placed on the following case laws - a. The Commissioner of Ce....
X X X X Extracts X X X X
X X X X Extracts X X X X
....xable value to Rs. 435.47 crore by completely disregarding audited financial data and legitimate deductions, thereby computing an exaggerated and hypothetical demand of Rs. 55.58 crore. The failure to consider exemptions, reimbursements, taxes already paid and 50% increase in turnover each year has led to a grossly distorted demand, which is not supported by any cogent evidence or reconciliation with actual records. (iv) The above comparative analysis clearly demonstrates that there is no short payment of service tax by the Appellant, and the entire demand is the result of erroneous assumptions, inflated estimations and non-consideration of material evidence on record. Accordingly, the impugned demand for the period 2010-11 to June 2017 is liable to be set aside in toto. Submission with regards to DEMAND RAISED IN SCN DATED 28.04.2016 FOR THE PERIOD 2013-14 AND 2014-15 (i) It is submitted that the allegations raised in SCN dated 28.04.2016 with respect to the alleged wrongful claim of exemption on account of export of services and services provided to SEZ, amounting to Rs. 1,23,97,840/-, as well as the alleged wrongful availment of CENVAT credit amounting....
X X X X Extracts X X X X
X X X X Extracts X X X X
....19 FOR THE PERIOD 2016-17 (i) It is further submitted that the demand of Rs. 1,27,40,568/- raised in SCN dated 12.04.2019 is wholly unsustainable, as the same has been computed solely on the basis of figures reflected in the Income Tax Returns and audited Profit & Loss Account of the Appellant, without any examination of the nature and character of the services actually provided. (ii) The Income Tax Returns and audited financial statements, which are public documents, clearly indicate the nature of business carried on by the Appellant, namely provision of security agency services. A careful reading of these documents would also reveal that a substantial portion of the Appellant's receipts pertained to exempted services, non-taxable services and reimbursement of expenses, which do not form part of the taxable value. These financial statements were duly audited by an independent Chartered Accountant and constitute reliable primary evidence of the Appellant's financial position. However, the Department has mechanically adopted the gross figures from the ITR/audited Profit & Loss Account without undertaking any analysis or segregation of taxable and non-taxable compon....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, and other statutory documents. These records were either furnished by the Appellant or were otherwise available to the Department and were also examined during audit proceedings. When the very foundation of the demand is drawn from disclosed records, the allegation of suppression of facts is ex facie untenable. (iv) It is a settled principle of law that when information is available in the books of accounts or statutory records, extended limitation cannot be invoked. The Hon'ble Supreme Court in Anand Nishikawa Co. Ltd. v. CCE [2005 (188) E.L.T. 149 (S.C.)] has held that suppression of facts must be wilful and with intent to evade duty, and mere omission or failure does not constitute suppression. It was held that extended limitation cannot be invoked unless there is deliberate withholding of information. (v) Reliance is also placed on the judgment of the Hon'ble Delhi High Court in Mahanagar Telephone Nigam Ltd. v. Union of India [2023 (73) G.S.T.L. 310 (Del.)], wherein Hon'ble Court while setting aside the impugned Show Cause Notice, held that when receipts are duly reflected in books of account and are available in the public domain, the allegation of suppre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vade tax; absent such evidence and where returns had been filed, the larger period is not invocable. The reasoning relied on prior authority and the fact that the earlier SCN for F.Y. 2015-16 had been decided in favour of the appellant, indicating the Department had prior knowledge of the facts. (x) It is further submitted that the Ld. Adjudicating Authority, in the Impugned Order, has itself recorded a clear finding that penalty under Section 78 of the Finance Act, 1994 is not imposable in respect of SCNs covering the period 2010 to June 2017, on the ground that there was no suppression of facts. The Ld. Adjudicating Authority has rightly observed that once earlier SCNs on the same issue had already been issued by invoking the extended period, the Department was fully aware of the facts, and therefore, the element of suppression cannot be alleged for subsequent periods. Accordingly, penalty under Section 78 has been dropped for the said period. (xi) Having accepted that there was no suppression of facts, the Department cannot simultaneously sustain the demand by invoking the extended period of limitation for the same period. The very foundation for invoking exten....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the earliest transactions forming the subject matter of the present proceedings are now more than two decades old. The Appellant had, at the relevant point of time, duly cooperated with the Department and produced its books of accounts, audited financial statements and other financial records before the audit team during the detailed audit. The very fact that the first SCN dated 21.04.2011 was issued by comparing the Appellant's audited financial statements, Income Tax Returns, Form 26AS and service tax challans clearly establishes that the relevant records were produced by the Appellant and were available with and examined by the Department. The conduct of the Appellant in producing its records during audit and regularly discharging service tax liability also demonstrates its bona fide approach and completely negates any suggestion that the Appellant had withheld material documents or deliberately prevented the Department from determining the correct tax liability. (iii) In the present case, a fresh adjudication would place an impossible and highly prejudicial burden upon the Appellant to once again retrieve and produce transaction-level records pertaining to periods ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing within the taxable category under the Finance Act, 1994, and was accordingly liable to discharge service tax on the consideration received in respect of such services. (ii) That, during the course of audit and subsequent verification, discrepancies were noticed between the income reflected in the appellant's financial records and the service tax discharged by it. According to the Revenue, the appellant had not correctly discharged the service tax liability on the taxable receipts reflected under the head "Security & Professional Charges". (iii) That the appellant had not furnished the prescribed ST-3 returns for substantial periods and had also failed to furnish the requisite financial statements, ledgers, supporting documents and other records despite repeated requisitions by the Department. The Revenue accordingly submitted that the authorities were justified, wherever applicable, in resorting to the best-judgment assessment under Section 72 of the Finance Act, 1994. (iv) That, for the subsequent periods, the taxable value was determined on the basis of the material available with the Department and, in the absence of reliable disclosures from t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erlying taxable activity and the material available with the Department, with the respective demands being quantified for the individual periods in accordance with the statutory provisions then applicable. (xi) That, in respect of the proceedings pertaining to Financial Year 2016-17, the Revenue had also obtained relevant financial and transactional material from the DGGSTI, pursuant to correspondence exchanged between the two formations, and the demand was thereafter quantified on the basis of the material so received. (xii) That, for the transitional period April 2017 to June 2017, in the absence of ST-3 returns and reliable financial particulars for the relevant period, the Department was justified in invoking Section 72 and determining the taxable value on a best-judgment basis by reference to the figures pertaining to Financial Year 2016-17 and the methodology adopted in the Statement of Demand. (xiii) That the failure to discharge the admitted/determined service tax liability within the prescribed time attracted interest under Section 75, and the various contraventions relied upon by the Department rendered the appellant liable to the penalties impo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nancial Year 2015-16, involving Rs.19,74,97,900/-; Statement of Demand No. 23/2018-19 dated 12.04.2019 (hereinafter, "SCN-VII") for Financial Year 2016-17, involving Rs.1,27,40,568/-; and, finally, Statement of Demand No. 40/2019-20 dated 13.02.2020 (hereinafter, "SCN-VIII") for the transitional period April 2017 to June 2017, involving a proposed demand of Rs.45,21,625/-. Thus, the controversy before us traverses the entire period from Financial Year 200506 through June 2017, spanning eight Show Cause/Demand Notices in total. 20. The case of the Revenue, in substance, is that the appellant, being engaged in the provision of Security Agency Services, had failed to correctly discharge its service tax liability on the taxable receipts arising from such activities; that the particulars disclosed by it in its financial records, ST-3 returns and other documents did not, according to the Department, satisfactorily account for the taxable turnover; and that the appellant had either failed to furnish the requisite statutory returns and records or had not substantiated the exemptions and CENVAT credit claimed by it. In respect of the relevant periods, the Department consequently proceede....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he sustainability of the invocation of the extended period of limitation and, consequentially, the justification for the interest and penal liabilities imposed upon the appellant. In our considered view, these questions cannot appropriately be answered by treating without individually examining the factual substratum, nature of the allegations, material relied upon and methodology adopted by the Department in the different Show Cause Notices issued for the corresponding periods under dispute. 23. We shall accordingly examine the matter seriatim, by taking up each of the eight Show Cause Notices separately, noticing the allegations and basis of the demand contained therein, the defence and counter-submissions advanced by the appellant in relation thereto, and the manner in which the same have been dealt with in adjudication. Upon such examination, the appropriate directions shall follow in respect of each proceeding. Show Cause Notice No. 25/Audit/2011-12 dated 21.04.2011 - (SCN-I) - Financial Years 2005-06 to 2009-10 24. We now take up Show Cause Notice No. 25/Audit/2011-12 dated 21.04.2011, issued for the period Financial Years 2005-06 to 2009-10, proposing recovery of se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rvice tax levy. To include receipts which are outside the statutory charging provision would be to travel beyond the four corners of the taxing statute. Such an approach would, in our view, be antithetical to the settled principle that a taxing liability must have clear statutory foundation. 26.4. The appellant has also contested the inclusion of reimbursable expenses, contending that such amounts represent mere recovery of costs incurred on behalf of the service recipient and do not constitute consideration for the taxable service itself. This contention assumes particular significance in view of the period involved in SCN-I. 26.5. The legal position concerning reimbursable expenses, as it stood during the relevant period, came to be authoritatively considered by the Hon'ble Supreme Court in Union of India v. Intercontinental Consultants and Technocrats Pvt. Ltd. [2018 (10) G.S.T.L. 401 (S.C.)]., wherein it was held that the value of taxable service could not, during the period prior to the statutory amendment, be enlarged so as to include amounts which were merely reimbursed expenses and did not represent consideration for the service provided. The said position continu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....92 during the relevant period in the course of carrying on its taxable business. These expenses, according to the appellant, were incurred in connection with the provision of its output services and constitute an important part of the factual matrix relevant to the question of CENVAT Credit. For better appreciation of the facts, the year wise bifurcation of the said expenses is as below: - Period Administrative and Other Office expenses (Rs.) 2005-06 18,15,43,07.56/- 2006-07 2,31,43,335.07/- 2007-08 3,22,12,471.78/- 2008-09 4,57,44,448.60/- 2009-10 4,76,86,585.91/- Total 12,57,71,148.92/- 27.3. Further, the appellant has submitted that the Service Tax payments made by them insofar as the period from 2005-06 to 2009-10 is concerned, involved payments through both cash as well as CENVAT Credit. The details thereof have been furnished, as under: - Period Service Tax paid in cash Service Tax paid through CENVAT credit 2005-06 49,35,959.00 41,34,339.11 2006-07 62,10,241.00 58,37,984.00 2007-08 48,35,955.00 87,00,486.00 2008-09 1,41,70,378.00 1,21,25,955.00 2009-10 2,01,88,115.00 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....expenditure, and the Revenue has not placed sufficient material before us to establish that the entire credit claimed/adjusted was inadmissible. We also note that the period of dispute being quite old, and the investigation having been lacking, the appellant cannot be faulted for procedural lapses in this regard. The substantive benefit of CENVAT Credit, in the facts and circumstances of the case, must therefore be allowed to the appellant. 27.9. We therefore hold that the CENVAT credit adjustment towards the service tax liability for the period covered by SCN-I cannot be denied. Therefore, by allowing the benefit of adjustment of Service Tax dues during the period in question through availment of CENVAT Credit, we hold that the demand necessarily requires to be reworked after giving due effect to the eligible CENVAT credit adjustment so done the appellant, in accordance with law. 3. Extended Period of Limitation under Section 73(1) of the Finance Act, 1994: - 28. We now come to the question of limitation, which goes to the very maintainability of a substantial part of the demand. SCN-I invokes the proviso to Section 73(1) of the Finance Act, 1994 on the allegation of wilf....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Umesh Tilak Yadav v. Commissioner of Central Excise, (2024) reported in 159 taxmann.com 336 the Hon'ble CESTAT, Mumbai, while setting aside the impugned order, the Tribunal has held as under: - "4. We have carefully gone through the record of the case and submissions made. The demand was raised invoking the provisions of sub-section (1) of Section 73 of Finance Act, 1994. The said provision of Finance Act empowers Revenue for recovery of service tax which has not been levied or which has not been paid or which has not been short levied or which has not been short paid or which has been erroneously refunded. Therefore, the first step for Revenue is to establish that a specific amount to be demanded through show cause notice by invoking the said provision is service tax either not paid or short paid or not levied or short levied. Therefore, it is essential to establish that the value on which such service tax is calculated is the value under section 67 and the same is derived from the consideration received by the appellant out of the activity which has to satisfy definition of service under sub-section (44) of Section 65B of Finance Act, 1994. Such type of examination of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d the permissible five-year look-back period reckoned with reference to the date of issuance of SCN-I. Such portion of the demand, therefore, cannot be revived by invoking the extended period and is ab initio unsustainable. We accordingly hold that the portion of the demand pertaining to the period beyond the statutory outer limit is liable to be set aside, being clearly beyond the four corners of the statutory scheme. 31. From the foregoing discussion in respect of SCNI, we are of the considered view that the original determination suffers from deficiencies both in quantification and appreciation of the material, and that several substantive issues raised by the appellant-particularly the treatment of exempted/non-taxable services, reimbursable expenses and CENVAT credit-have not received the requisite examination. Equally, the invocation of the extended period has not been shown to satisfy the statutory threshold, while the portion of the demand falling beyond the absolute five-year outer limit is ex facie barred. 32. We therefore deem it appropriate, in the interests of a proper and legally sustainable determination, to remand the matter to the adjudicating authority for t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 13.02.2020 - (SCN-VIII) - Financial Year 2017-18 (April 2017 to June 2017) 33. It would be appropriate to note that, insofar as the aforesaid Show Cause Notices/Statements of Demand are concerned, the principal plank of the submissions advanced on behalf of the appellant is that the entire exercise undertaken by the Department proceeds upon an erroneous and mechanically applied invocation of the best-judgment assessment contemplated under Section 72 of the Finance Act, 1994. It has been vehemently contended that the said provision, being in the nature of an exceptional machinery provision, cannot be invoked as a matter of course merely because the Department considers the returns or information furnished by an assessee to be inadequate or incomplete. According to the appellant, the Department was admittedly in possession of its audited financial statements, Profit & Loss Accounts, balance sheets, statutory records, returns and other material, and could not, in the teeth of such material, discard the actual figures and substitute them with figures arrived at by applying arbitrary percentage increases, pro-rata calculations or the highest turnover of an earlier period. 33.1. I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ot rest upon figures which are merely hypothetical or arbitrarily extrapolated. 34.1. More importantly, the impugned Order-in-Original itself records, at various places, that the appellant had furnished audited financial statements and other financial records. The Appellant has specifically drawn our attention to paragraphs 48.4, 48.5, 48.6 and 49.1.9 of the impugned order, wherein such records have been acknowledged. Yet, while confirming the demands under Section 72, the Adjudicating Authority proceeds, as noticed by the appellant, on the premise recorded in paragraph 58.2 that no such financial records had been submitted. Such mutually inconsistent findings cannot be brushed aside as a mere irregularity. They go to the very foundation of the assessment and disclose an apparent non-application of mind to the material forming part of the adjudication record. 34.2. The matter is further compounded by the allegation that the appellant had not filed statutory returns. The impugned order itself, according to the submissions placed before us, records filing of statutory returns for certain periods, including the periods from 2005-06 to 2009-10 and 2011-12 to 2014-15. In such circ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... has held as under: - "In addition, we note that the demand for the period 2012-13, was based on Best Judgment method. It has been submitted by the Ld. Counsel that the demand based on Best Judgment is incorrect as the appellant had submitted all details and documents to the department. It has been further submitted that vide their letter dated 21.04.2014 (RUD to Show Cause Notice dated 22.05.2014) wherein turnover pertaining to Works Contract Services was duly informed to the Department. Further, the Department has submitted that the demand for the period 2012-13 was arrived at by jacking up the turnover of WCT of previous year 2011-12 to the extent of 150% by resorting to Section 72 of the Finance Act, 1994, as the appellant had failed to provide the information sought by the department." 34.5.1. This view has also been reiterated by this Tribunal in case of Dhillon Aviation Pvt. Ltd. Versus Commissioner of central excise, Delhi-II reported in 2020 (37) G.S.T.L. 434, wherein at paragraph 6.5, it has been observed as under - "It is admitted in the impugned order that the department obtained total receipt value for the preceding years from the appellant. There ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....them mechanically into the taxable turnover. The same applies to amounts claimed as reimbursement of expenses. As already noticed supra, the Supreme Court in Union of India v. Intercontinental Consultants and Technocrats Pvt. Ltd. (supra) held that, during the relevant period, the value of taxable service could not be enlarged by including reimbursable expenses which did not constitute consideration for the service itself. The said legal position continued until the relevant statutory amendment with effect from 14.05.2015. 35.2. We also deem it appropriate to take note of the fact that the periods covered by the present batch of Show Cause Notices span both sides of the statutory amendment brought about with effect from 14.05.2015. The decision of the Hon'ble Supreme Court in Intercontinental Consultants and Technocrats Pvt. Ltd. (supra)would apply to the law as it stood prior to 14.05.2015, Pursuant to the subsequent amendment to Section 67 by the Finance Act, 2015, with effect from 14.05.2015, the statutory definition of "consideration" was enlarged so as to include reimbursement of expenditure or cost incurred by the service provider in the course of providing or agreeing....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 36.1. We have already considered the corresponding issue in the context of SCN-I and have held that the claim of CENVAT credit cannot be rejected merely on assumptions, particularly when the Appellant has placed on record material evidencing the incurrence of administrative, operational and other expenses in the course of rendering taxable services. 36.2. The substantive character of the CENVAT credit mechanism cannot be lost sight of. Once the Appellant claims that a part of its service tax liability stood discharged through CENVAT credit, the Department is required to verify the eligibility and utilisation of such credit with reference to the relevant statutory records, rather than reject the adjustment on a generalized premise that the Appellant had not incurred expenditure capable of yielding credit. 36.3. The material placed before us, including the audited financial records, indicates that the appellant had incurred substantial administrative and operational expenditure in the course of its business. We have already observed supra that the mere fact that salary expenditure may not qualify for CENVAT credit does not justify the sweeping conclusion that the Appellant....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hile setting aside the proceedings, categorically held that where the Department was already aware of the relevant facts, the extended period could not thereafter be invoked for subsequent demands on the same issue. The principle underlying the said decision is of particular relevance in the present case, where the Department, having undertaken an audit for the earlier period, proceeded to issue successive proceedings for the subsequent periods on substantially the same factual foundation. 37.3. In the facts as obtaining before us, we do not find material sufficient to establish the requisite element of suppression of facts with intent to evade payment of service tax so as to justify recourse to the extended period. Mere non-filing or delayed filing of returns, without something more demonstrating deliberate concealment or a positive act of suppression, cannot, in the circumstances of the present case, furnish an automatic foundation for invoking the extended period. 37.4. We are, therefore, of the considered view that the extended period of limitation, wherever invoked in respect of SCN-II, SCN-III, SCN-IV, SCN-VI and SCNVIII, is not invokable. The demands, if otherwise sust....
X X X X Extracts X X X X
X X X X Extracts X X X X
....okable, the adjudicating authority shall restrict any service tax liability found otherwise sustainable to the normal period of limitation prescribed under the applicable statutory provisions. 38.1. After undertaking the aforesaid exercise, the adjudicating authority shall recompute the actual service tax liability, if any, separately for each relevant financial year, after granting a reasonable and effective opportunity to produce the relevant records and advance its submissions, and thereafter, the adjudicating authority shall pass a fresh, reasoned and speaking order in accordance with law, without being influenced by the findings in the impugned order which stand contrary to the observations recorded herein. The consequential interest and penal liability, if any, shall abide by the fresh determination and also the findings recorded herein. Demand Cum Show Cause Notice No. 13/DivVIII/2016-17 issued vide C. No. DL-II/ST/DIV VIII/R-40/TFG/36/2015/5542 to 5545 dated 28.04.2016 - (SCN-V) - Financial Years 2013-14 and 2014-15 39. We now turn to Demand Cum Show Cause Notice No. 13/Div-VIII/2016-17 dated 28.04.2016, covering the Financial Years 2013-14 and 2014-15. The said pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in question were, in fact, taxable. 40.1. We find considerable force in the submission. Where an assessee claims the benefit of an exemption or exclusion from the taxable value, the Department is certainly entitled to examine the eligibility of such claim and to call for the supporting documents necessary for such determination. However, the rejection of such claim cannot be founded upon presumption alone. The Department is required to examine the underlying factual position and arrive at a reasoned conclusion as to why the particular transaction does not satisfy the statutory requirements. 40.2. The present controversy concerns transactions claimed to constitute export of services and/or services provided to SEZ units. These are matters which are ordinarily capable of verification from contemporaneous and objective material, including agreements with the recipients, invoices, details of the nature and place of provision of services, remittance records, banking documents, statutory records and other transactional evidence. In such circumstances, the mere circumstance that certain documents were not produced pursuant to departmental correspondence cannot, by itself, be elevate....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cheme. 41.2. The adjudicating authority shall, therefore, undertake a transaction-wise verification of the claims raised by the appellant and allow such deductions as are found legally admissible. The matter cannot be resolved merely by rejecting the claims for want of a general documentary correlation without examining the underlying records. 3. Eligibility towards CENVAT Credit 42. The appellant has further contested the demand of Rs.44,16,431/- towards alleged wrongful availment and utilisation of CENVAT credit. According to the Appellant, the Revenue has proceeded upon the erroneous assumption that its expenditure substantially comprised salary payments and that no meaningful input services were utilised in rendering the taxable output services. The Revenue on the other hand, claims that the said denial and recovery of CENVAT Credit is attributable towards non-furnishing of documentary proof by the appellant in this regard. 42.1. On this score, the appellant has specifically drawn attention to its audited records showing Finance Costs of Rs.1,31,05,475/- and Administrative and Other Office Expenses of Rs.1,69,01,505/- during the relevant period. These figures, at th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eme Court in Nizam Sugar Factory (supra), we accordingly hold that the extended period of limitation is not invokable in respect of SCN-V, if at all invoked, and any liability that may ultimately survive upon fresh adjudication shall be confined to the period otherwise permissible under the normal limitation prescribed by law. 44. In view of the foregoing discussion, we are of the considered opinion that the demand confirmed under SCN-V cannot be sustained and requires re-examination, particularly in the light of the claims of entitlement towards exemption and eligibility towards CENVAT credit made by the appellant. The Department has proceeded without adequate verification of the underlying material. The matter is, accordingly, remanded to the adjudicating authority with the following specific directions: (i) The adjudicating authority shall undertake a proper and independent verification of the appellant's claims concerning export of services and services provided to SEZ units, with reference to the relevant agreements, invoices, remittance records, statutory documents and such other contemporaneous evidence as may be produced or otherwise available. The claims sh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nish the requisite information and had not filed the prescribed ST-3 returns for the relevant period. The Department, therefore, proceeded to determine the alleged service tax liability on the basis of material obtained from the Directorate General of GST Intelligence (DGGSTI), R.K. Puram, New Delhi, and raised a demand of Rs.1,27,40,568/- including applicable cess. 45.1. It is the appellant's specific case in respect of these proceedings that they had specifically informed the Department that the DGGSTI, R.K. Puram, New Delhi was already conducting an investigation concerning the Appellant for the period 2012-13 to 2016-17, and that the relevant books of account, financial statements and other documents had already been furnished before the said investigating agency. The appellant had, accordingly, questioned the necessity and propriety of requiring the same records afresh in a parallel proceeding. They have also raised various other grounds, which the Revenue seeks to dispute. 45.2. Having considered the rival contentions, we find that the issue before us in respect of the above Notice encompasses aspects such as the effect of the parallel investigation already undertaken b....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... double recovery. 2. Exempted, Non-taxable and Reimbursable Receipts - Taxability Cannot Be Presumed 47. The appellant has also reiterated that the gross figures relied upon by the Department contain receipts attributable to exempted services, non-taxable services and reimbursable expenses, which cannot mechanically be brought within the taxable value. 47.1. We have already considered this issue in detail in the preceding Show Cause/Demand Notices for the previous periods in question. We accordingly reiterate that the mere fact that a receipt finds place in the audited financial statements does not ipso facto render the same exigible to Service Tax. The true character of each receipt and its nexus with the taxable service have to be ascertained. 47.2. With respect to the appellant's claim of reimbursable expenditure, the amended statutory scheme specifically brought reimbursable expenditure or costs within the concept of consideration shall have to be examined, subject to the statutory exclusion applicable where the service provider acts as a "pure agent" in terms of Rule 5(2) ibid. in the light of the documents/submissions offered in this regard. In particular, where t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es significance. 49.2. Accordingly, the extended period of limitation, if invoked in respect of SCN-VII, is held to be not sustainable. Any liability which may survive upon fresh determination shall be confined to the period otherwise permissible under the normal limitation prescribed by law. 50. In view of the foregoing discussion, we are of the considered view that the demand confirmed under SCN-VII cannot be sustained and suffers from various infirmities, which requires to be examined afresh on the basis of the actual records and transactions rather than upon an unverified adoption of gross financial figures. The matter is accordingly remanded to the adjudicating authority with the following directions: (i) The adjudicating authority shall examine the records/details obtained from the DGGSTI, R.K. Puram, New Delhi, and ascertain the precise scope of the investigation and any demand, determination or adjudication already undertaken for the relevant period. No amount shall be demanded or recovered twice in respect of the same transaction or taxable value. Any overlap shall necessarily be excluded from the present computation. (ii) The appellant's claims....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Department itself had access to the Appellant's financial records and other relevant material. The taxable liability, if any, must therefore, be ascertained on the basis of the facts, records and the consideration attributable thereto. 51.2. Similarly, insofar as the extended period of limitation has been invoked in the respective Show Cause Notices, we have recorded our finding that, in the facts and circumstances of the case, the necessary ingredients for invoking the extended period have not been established. The Department had, at different stages, access to the appellant's records and had undertaken audit/investigative exercises in respect of its activities. In such circumstances, and having regard to the ratio of the Hon'ble Supreme Court in Nizam Sugar Factory (supra) repeated invocation of the extended period on the same factual foundation cannot be sustained. The demands, wherever otherwise found legally sustainable, would therefore have to be confined to the normal period of limitation. 51.3. Thus, the adjudication, in our view, cannot rest upon an approach whereby material contentions having a direct bearing upon the assessable value and ultimate ta....