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TMI Blog2019 (2) TMI 1563X X X X Extracts X X X X X X X X Extracts X X X X ..... demanding service tax of Rs. 8,07,86,168/- for the aforesaid period with a proposal to appropriate amount of Rs. 3,52,71,055/- paid by the appellant. Further, there were proposals for imposition of penalty. On contest, the said show cause notice was adjudicated through impugned Order-in-Original where the service tax demand was confirmed and proposed amount was appropriated. The appellant was imposed with equal penalty under Section 78 of Finance Act, 1994 and some other penalties were also imposed. Aggrieved by the said order, appellant is before this Tribunal. 3. Heard the learned Chartered Accountant Shri Abhinav Kalra on behalf of the appellant. He has submitted that there are two issues involved in the appeal. One is confirmation of demand of service tax and other is admissibility of Cenvat credit of around Rs. 2.15 crores to the appellant. The submissions of learned Chartered Accountant on the above two issues are as follows:- (A) Demand Wrongly Confirmed on the basis of Form 26 AS of the appellant * The appellant submitted that the appellant had during the course of audit, duly submitted all the details that were asked for by the audit team of the service tax departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch and seizure, failed to prove/ adduce any evidence that the Appellant is liable to pay tax of Rs. 8,07,86,168/- . * Sharma Fabricators & Erectors Pvt Ltd Vs CCE Allahabad,- 2017(5) GSTL 96- Tri-Allahabad- in this case it was held that: Based on presumptions and third party information - Allegation of mis declaration of assessable value and short payment of Service Tax on basis of TDS Certificate issued by assessee's clients - Assessee disputing issuance of SCN without examination of books of account maintained by assessee-Said Show Cause Notices not sustainable. (B) That the Ld. Commissioner has grossly erred in not giving the benefit of CENVAT credit available with the appellant while computing the demand of the service tax. The appellant hereby submitted that the appellant had claimed CENVAT Credit amounting to INR 2,21,35,916/- during the period under investigation. The said amount of CENVAT credit duly meets all the requirements of eligible CENVAT credit as prescribed under the CENVAT Credit Rules 2004. Further, the appellant had submitted the details of the CENVAT credit available with them during the period under investigation to the audit team of the service tax de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... calculated which is detailed in the following chart:- Financial year Gross receipt as per the Form 26AS received from income tax authority (RS.) Service Tax payable @ 12.36% (Rs.) 2012-13 428356417 52944853 2013-14 181936628 22487367 2014-15 43316726 5353947 TOTAL 653609771 80786168 27. Now, therefore, M/s Lord Krishna Real Infra Pvt. Ltd. 206-208, JOP Plaza, Sector-18, Noida, are required to show cause to the Commissioner, Service Tax Commissionerate, Noida within 30 days of the receipt of this show cause notice as to why:- (i) The service tax amounting to Rs. 8,07,86,168/- including Ed. Cess and S & H Ed. Cess for the period from 2012-13 to 2014-15 should not be demanded and recovered from them under the proviso to Section 73 (1) of the Finance Act, 1994 and the already deposited service tax Rs. 3,52,71,055/- should not be appropriated against their above service tax liability. (ii) Interest should not be demanded under Section 75 of the Act on the amount of Service Tax, from the date due and not paid by the party. (iii) Penalties should not be imposed upon them under Section 78 of the Finance Act, 1994 for suppressing the taxable value and for contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He has stated that they had elaborated before the Original Authority various reasons for discrepancies in the figures arrived at presuming the considerations received by M/s. Sharma on the basis of such TDS Certificates and the figures in the returns. He has further relied upon this Tribunal's Final Order in the case of Alpa Management Consultants P. Ltd. v. Commissioner of Service Tax, Bangalore reported in 2007 (6) S.T.R. 181 (Tri. - Bangalore). He submitted that this Tribunal in the said case has held that demands, solely based on the income-tax returns for liability of Service Tax under Finance Act, 1994 is not sustainable. In respect of appeal filed by Revenue ld. counsel for M/s. Sharma has contended that the grounds of appeal are travelling beyond the Show Cause Notice and therefore that is not sustainable. He has further elaborated that cargo handling was brought in as ground by Revenue in the appeal filed by Revenue whereas that issue was not at all dealt with in the Show Cause Notices dated 20-4-2009 & 13-10-2009. 4.Heard the ld. DR, who has presented the grounds of appeal in appeal filed by Revenue. 5.Having considered the rival contentions and on perusal of record, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant to produce the original documents on the basis of which Cenvat credit was availed by the appellant, in case he had doubt about the availability of original documents with the appellant. The order of Original Authority presuming that the appellant did not have original documents is not sustainable in respect of availment of Cenvat credit. Further, there was no proposal in the said show cause notice to deny said Cenvat credit. Further, we find that on the basis of form 26AS return filed under Income Tax Act without examining any other records of the appellant. Charges of short payment of service tax to the tune of Rs. 8 crores were made against the appellant. It was possible for Revenue to know the transactions between other parties & appellant from form 26AS. Revenue could have investigated into the nature of such transactions & should have established that the said transactions were in respect of provision of said service. Then alone the charges of short payment of Service Tax would have sustained. We find that Final Order of this Tribunal in the case of Sharma Fabricators Pvt. Ltd. (supra) is squarely applicable in the present case. We, therefore, hold that Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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