9911796707
TMI Blog2015 (10) TMI 1305X X X X Extracts X X X X X X X X Extracts X X X X ..... intainable – Decided in favour of the assessee. - Service Tax Appeal No. 707 of 2012 - Final Order No. A/ 53076/2015-ST - Dated:- 6-10-2015 - Mr Ashok Jindal, Member (Judicial) And Mr. R K Singh, Member (Technical) For the Appellants : Shri J K Mittal with Shri Rajveer Singh, Advocates For the Respondent : Shri Amreesh Jain, DR ORDER Per Ashok Jindal : The appellant is in appeal against the impugned order wherein the show cause notice dated 12.10.2010 was held to be maintainable. 2. The facts of the case are that the appellant is registered with sales tax department for air travel agent service, tour operators service and business auxiliary service. Initially, the show cause notice issued to the appellant for the period 2004-2005 to 2008-2009 on 8.4.2010 under the category of tour operator service and Business auxiliary service. The said show cause notice is not the subject matter in this matter. But on the basis of said show cause notice, this show cause notice is issued. Before issuance of show cause notice, the appellant was asked to provide details/ documents/ information for the period April, 2009 to March 2010 through various letters dated 3.6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that it will attract penal provisions under section 77 of the Act and nowhere it is stated in any one of said letter that the same are issued under section 72 of the Act. Moreover, it was noted that in all the letters, it was stated to furnish the following month wise details/ documents/information, but nothing was stated what are those information/ details/ documents, Whereas the adjudicating authority has admitted that appellant has requested to the department to depute audit team to prepare desire details . Whereas there is no such allegation in the show cause notice that which record is required to be maintained under Rule 5 of the Service Tax Rules, 1994 have not been prepared by the appellant. Despite the appellant request, the department did not depute any team to verify the records as required under Rule 5A of the Service Tax Rules, 1994. 3. He further submits that the show cause notice is issued on the basis that appellant has failed to furnish the return which is found to be false. As admitted by the adjudicating authority that the returns for relevant period were filed on time. However, the adjudicating authority travelled beyond the allegation made in the show caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority travelled beyond the allegation made in the show cause notice recording that party has failed to fulfill condition (b) inasmuch as the ST 3 were filed by them are incomplete. This was not the allegation in the show cause notice or in the letters issued by the Department. The appellant has challenged such finding before the learned Commissioner (Appeals) on the ground that adjudicating authority travelled beyond the allegation made in the show cause notice but the learned Commissioner (Appeals) wrongly stated that there is a specific reference to section 72 (a) and 72(b) in para 9 of the show cause notice, whereas para 9 of the show cause notice clearly states that provisions of section 72 (a) of the Act are invoked. In the show cause notice, there is no allegation of violation of section 72(b) of the Act. Therefore, the impugned order is to be set aside. 4. He further submits that it was held by the authorities below that the department has not received such information /figures from the appellant which resulted in invocation of provisions of section 72 of the Act, but the letters issued by the department on various dates for sending information/ details were not issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has filed the return in time, therefore section 72(a) is not applicable and the allegation made for non-filing of return is proved false. He further submits that as there is no allegation in the show cause notice to invoke clause (b) of section 72 for failing to assess the tax in accordance with the law after filing the return therefore, the show cause notice is bad in the eyes of law and liable to be quashed. He also submits that show cause notice is apparently prepared by the AC whereas it has been signed and issued by the Joint Commissioner and the said infirmity was pointed out by them has not been dealt with by the both the authorities below. He further submits that there are difference in tax determined in figures mentioned numerically and in words which was pointed out but ignored by the adjudicating authority holding it as a typographical error without giving any reasons. In these terms, he prayed that impugned order is to be set aside. 6. On the other hand, learned AR supported the impugned order and submits that the show cause notice was issued in continuation of show cause notice dated 8.4.2010 and the charges and violations mentioned in the show cause notice dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 72 of the Act ibid read as Best judgment assessment means if any person, liable to pay Service Tax. (a) fails to furnish the return under Section 70; (b) Having made a return, fails to assess the tax in accordance with the provisions of this Chapter or rules made thereunder, The Central Excise Officer, may require the person to produce such accounts documents or other evidence as he may deem necessary and after taking into account all the relevant material which is available or which he has gathered, shall by an order in writing, after giving the person an opportunity of being heard, make the assessment of the value of taxable service to the best of his judgment and determine the sum payable by the assessee or refundable to the assessee on the basis of such assessment. 14. As per the abovesaid provisions, the provisions are attracted in a case the assessee has failed to furnish the return under section 70 of the Act and if he has made the return fails to assess the tax in accordance with the provisions of this chapter or Rules made thereunder. 15. Therefore, section 72 ibid has two limbs: A. Fails to furnish the return or B. If return has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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