TaxTMI 
TaxTMI 
2026 (9) TMI 958
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....emanded for the same for the period April 2008 to June 2012, also cenvat credit was availed irregularly, hence show-cause notice was issued for demand of service tax and for the denial of cenvat credit. The Commissioner on verification of the financial documents upheld the demand of service tax on the differential taxable value for the period from June 2008 to March 2014. In addition, demanded irregularly availed cenvat credit along with interest and also imposed various penalties under Section 76, 77 of Finance Act, 1994 read with Rule 15 of the Cenvat Credit Rules, 2004. Aggrieved by this order, the appellant is in appeal before us. 3. The Learned Sr. Counsel submits that the service tax demand on differential value is on the ground that the income shown in the balance sheet is higher in comparison with ST-3 return without considering the fact that the balance sheet amount is on accrual basis while the amount shown in ST-3 returns is on receipt basis and this was clearly explained in the certificate issued by the Chartered Accountant. He also submits that the taxes paid, amounts paid towards water and electricity were not deducted from the taxable value and the actual amounts ....
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....that this Court cannot condone the delay which the appellate authority could not have condoned in view of the decision of the Apex Court in case of Glaxo Smith Kline Consumer Health Care Limited (supra). However when the show-cause notice issued by the respondent is without jurisdiction and the same is challenged before this Court, this Court while exercising jurisdiction under Article 226 of the Constitution of India, would examine as to whether the respondent authority had jurisdiction to issue such show-cause notice or not. On perusal of the show-cause notice, it is apparent that the show-cause notice only refers to the details provided by the Income Tax Department of various assessees for the I.T. Returns for the F.Y. 2015-16 and 2016-17 and details in Form No.26AS (TDS) and only on that basis, without making any further inquiry by the respondent, the show-cause notice was issued making the petitioner liable to pay the service tax on the assumption that that there was sales of services on the basis of the Income Tax Returns filed by the petitioner without verifying that what type of services is provided by the petitioner. It is also apparent from the record that the respondent ....
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....e and therefore service tax is payable. This approach is not legally sustainable; it is the responsibility of the person alleging to prove the allegation with evidence; the Department failed to do so; moreover, an attempt has been made to confirm the duty of service tax on the basis of discrepancy in various statements and figures. It has been held in number of cases that such confirmation of tax is not legally sustainable. 7. Learned Sr. Counsel also relied on the following decisions:- I. Firm Foundation & Housing Pvt. Ltd. v. PR. Commr. of ST, Chennai: 2018 (16) G.S.T.L. 209 (Mad.) II. SS Construction v. Commissioner of Central Excise, Raigad: 2020 (37) G.S.T.L. 222 (Tri.- Mumbai) III. Alpa Management Consultants P. Ltd. v. Commissioner: 2007 (6) S.T.R. 181 (Tribunal Commr. of ST, Bangalore v. ALP Management Consultants P.Ltd.: 2011 (42) S.T.R. 287 (Kar.) IV. Commissioner of ALP Management Consultants P. Ltd.: 2016 (44) S.T.R. J284 (S.C.) V. Shri Ravindra Kumar Hasankar v. Commissioner of CT, Belagavi Commissionerate: 2025 (4) TMI 247 - CESTAT Bangalore. 8. With regard to cenvat credit, it is submitted that the same was denied wi....
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....Copies of the letters are reproduced below:- 10. In this regard, Learned Sr. Counsel also relied on the decision in the matter of Commissioner of S.T. - IV, Mumbai Vs. Zapak Digital Entertainment Ltd., it is held that:- "5. The respondent carried the issue to the Tribunal. On examination of the invoices, the Tribunal by the impugned order dated 10th July, 2015 held that the invoices clearly shows that the agency has merely acted to as a conduit for transfer of money from the respondent to the broadcaster. Consequently, on the above finding of fact held that the respondent was entitled to avail Cenvat credit. 6. The grievance of the appellant-Revenue is that the invoices issued by the broadcaster also shows the name of the advertising agency. therefore, the respondent could not avail of the Cenvat credit on the basis of the above invoices. We find that the impugned order of the Tribunal has rendered a finding of fact that the invoices as issued by the broadcaster in the name of the respondent. It also holds on a finding of fact that the advertising agency is merely shown as an agent of the respondent. This finding of fact is not shown to be perverse". 11. Lea....
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....he immovable property. As regarding Activity of generation and supply of electricity from DG sets, though as per OIA No. 347/2012 dated 18.12.2012, it is held as not liable to service tax for the previous period, since service tax of Rs. 2,16,349/- has already been remitted by the appellant for October 2009 to June 2012, the appellant is entitled to avail cenvat credit on the said services. 14. As regarding Maintenance and repair services which are classifiable u/s 65(105)(zzg), Learned Sr. Counsel submits that in terms of Rule 6(5) of the Cenvat Credit Rules, 2004, where the input services are partially used for exempt and taxable, provisions of Rule 6 do not apply. In this regard, Learned Sr. Counsel relied on the decision in the matter of CCE Vs. Simplex Castings Ltd. - 2010 (18) STR 628 (Tri. - Del.). Learned Sr. Counsel also relied on the following decisions: • Commr of ST, Bengaluru v. Golflinks Software Park Pvt. Ltd.: 2023 (8) CENTAX 30 (Kar) • M/s. Demosha Chemicals Pvt. Ltd. v. CCE & ST Daman: 2014 TIOL 534 -CESTAT-AHM • GE India Industrial Pvt. Ltd. v. Commissioner of C. Ex., New Delhi: 2017 (51) S.T.R. 420 (Tri. - Del.) ....
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....he CA certificate itself, there is a difference of turnover of Rs.2762654/- for the period 2008-09 to 2010-11 which has escaped service tax. Hence the certificate of Chartered Accountant is not acceptable.' In this regard, we find that as per the finding of this Tribunal in the matter of Alpha Management Consultancy (supra) which was upheld by Hon'ble High Court of Karnataka and Hon'ble Supreme Court, it is categorically held that as per Section 68 of the Finance Act, every person providing taxable service to any person shall pay service tax and service tax cannot be recovered based on the return shown on the income tax returns. Further we find that as per the decision of the Tribunal in the matter of ITC Ltd. Vs. CC (supra) is held that since it is revenue who is making allegation as such, the onus to prove the said allegation lies heavily upon the revenue. In the present case, the CA had given the certificate and learned Sr. Counsel drew our attention to the details which includes amount of rent to received by the appellant which pertains to the prior to 01.06.2007, when renting of immovable property was not subject to service tax, exempted payment like property, municipal taxes,....
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....hat services were received by them which was not the case in the instant case since the appellant had not produced any documents to prove the receipt of the service and the documents issued by DGFT that Safina Technology Park is part of the commercial space does not justify since admittedly these are separate entities. 20. With regard to cenvat credit availed on maintenance and repairs of DG sets, we find that though Commissioner (Appeals) held that appellant is not liable to service tax for the previous period, since service tax of Rs. 2,16,349/- has already been remitted by the appellant for October 2009 to June 2012, the appellant is entitled to avail cenvat credit on the said services provided tax has been discharged on the same. 21. As regarding demand confirmed by invoking extended period of limitation and penalty, taking into consideration the fact that the appellant was regularly filing ST-3 returns and the demand is on account of differential taxable value, the question of suppression does not arise, therefore the demand is limited only to the normal period. Demand of service tax by invoking extended period of limitation and penalty are set aside. 22. Accordingly,....