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TMI Blog2016 (12) TMI 1391X X X X Extracts X X X X X X X X Extracts X X X X ..... urnover by way of wild guess work. Appeal allowed - decided in favor of appellant. - ST/52269/2015-CU[DB] - 71070/2016 - Dated:- 26-10-2016 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Kapil Vaish, Chartered Accountant, for Appellant Shri Rajeev Ranjan, Joint Commissioner, (AR), for Respondent ORDER Per Anil Choudhary The present appeal is filed by the appellant, M/s ABC Classes, herein is a Coaching Institute, a partnership firm providing the service of education/coaching under the classification of commercial training and coaching service. They are in appeal against Order-in-Original No. ST (184/2013)06 of 2015 dated 02/03/2015 passed by Commissioner of Central Excise Customs, Allahabad. The issue in this appeal is whether the books of accounts maintained by the appellants and their Service Tax Returns filed time to time could be rejected or have been rightly rejected and the demand raised on the basis of statements under Section 14 of the Central Excise Act, 1994, whether the same is proper and/or whether the appellant have properly disclosed their turnover and maintained proper records which could no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1994, as the appellant have not maintained proper account evidencing the part or final fee paid by the students. The method of accounting of fee receipts/invoice was manipulated and receipt/invoices were marked by incomplete information. It is further alleged that fee/invoice do not have running serial number and the fee receipt issued do not have signature of any one of the partners or any of their Authorized Representative. Fee receipts issued during academic session 2010-11 for PMT Classes, were on white sheet which was hand written. Although original and duplicate copy of fee receipts were found to contain information, but the same was not mentioned in their office copy or the third copy. During search several documents like DSR expenditure (Daily Sales Report, cashbook pertaing to a single date, that is 05-08-2010) which shows receipt of ₹ 1,41,200/- in cash and ₹ 10,000/- through Cheque from 13 students. Only one fee receipt dated 05-08-2010 ₹ 7,000/- for PMT Target appeared to have been issued and that too in the name of Mr. K. M. Tiwari, whose name was not found in the list in the DSR and accordingly it appeared that for the Financial Year 2009-10, all th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Income Tax Department etc. He, further, invited our attention to a chart prepared as per the statements of various persons, as regards the number of students. Out of the statements connected to five persons, including the partner and one of the students and Marketing Executive of the appellant the maximum figures stated have been considered by the Revenue for the purpose of estimation. The appellant have further demonstrated at page 19 of the Compilation filed in the course of hearing that the gross receipts or turnover for the coaching service is in consonance as per the Books of Accounts maintained in the ordinary course of business; there is no discrepancy on comparison with the ST Returns and the returns filed under various other laws including the Income Tax Act. He, further, points out from the statement of Mr. Praveen Singh, partner, which is contained at page 71 of the Appeal Book wherein answer to Question No. 3 it is stated that they maintain proper records like Attendance Register, Salary Register, Fee Receipts, Identity Card issued to students. Further, on the question that - what is the basis of issue of Identity Card to the students. It has been stated that they als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts but on the basis of data mentioned in the receipt Register, they are able to make out the installment. Due to the free students, during the initial part of the session, they are unable to know the exact number of fee paying students. Further, on query in Question No. 19 - that in the fee receipts issued, all columns are not filled deliberately; it was answered that this happens due to the concept of free classes. Both the regular students and the free students attend the class together. The students of AIEEE course and IIT are taught together and it is subsequently decided which student will go in which batch. Further, in response to question whether it is not natural when the student deposits the fee, he knows or is informed that the fee he is depositing is for a particular course which he wants to study. In answer, it was stated that as all the matters cannot be decided at the admission counter. A student pays the first installment and is put in the batch. Subsequently, as per aptitude and progress, the batch is re-allotted to the students. Further, on query in Question No. 22 - as the fee of the student is the responsibility of his guardian; it was stated that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e returns filed could not have been rejected and/or brushed aside and the best judgment assessment has been made on some illusory basis. He, further, states that even otherwise the best judgment assessment made by the ld. Commissioner have got no legs to stand being a wild guess work, without any proper basis and accordingly the demand and penalties are fit to be set aside. He, further, states that Revenue have not brought any corroborative evidence save and except relying on the statements which cannot form the sole basis of a best judgment assessment under the facts and circumstances. 6. The ld. AR relies on the impugned order. 7. Having considered the rival contentions, we observe that no discrepancy has been found out by the Revenue during investigation and or at the time of adjudication in the Books of Accounts and records maintained by the appellant, in the ordinary course of business. Further, we find that the statements have been recorded in a flimsy manner without informing the persons, that whatever they state even if it is by approximation, the same will be used against them, for making a best judgment assessment, or in any proceedings under the Act. Further, we fi ..... 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