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TMI Blog2019 (5) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... , names are appearing in the entry to confirm that Mandap Keeper service was provided to them. The allegation of provision of service is made only on the basis of entries in the record without any evidence to support these allegations. The demand is thus raised on the basis of mere assumption and presumption that premises were rented against such entry. In absence any such corroborative evidences to support the allegation, demand is not sustainable. Outdoor Catering Service - Appellant s argument is that as against various entries of the enquires, they have provided catering service for a few entries, however, the Department has presumed that catering was provided against all enquiry appearing in the record - HELD THAT:- The Department has not substantiated the allegation about service provided by conducting further enquiries in the form of statement from the person whose names were appearing in the suggestive menu/quotation for which no bill was raised, to confirm that they have availed catering service from the Appellant. The SCN alleges provision of service for several crore against which tax is not discharged, however, there are no evidence of recovery of unaccounted money. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice provided by the above two registrants are mixed-up in common record and, therefore, was not possible to ascertain as to which entry is related to which firms. During investigation it was also found that Shri Santosh Bhandari is looking after the activities of these two firms. Therefore, entries against which service tax appeared to have not been paid were clubbed together and a Show Cause Notice dated 17.10.2014, for of demand for service tax short paid/ not paid ₹ 1,51,23,465 (Mandap Keeper Service ₹ 60,23,305/- + Outdoor Catering Service ₹ 91,00,151/-) was raised on the appellant, M/s Bhandari Cateres. 4. The Appellant had contested the demand before Commissioner on the ground that entries available in their record were about the enquiries made by the persons for availing service of catering or for acquiring of their premises on rent, for functions or the quotations were issued for desired catering, however, the Department have treated all these entries pertaining to provision of services. It was also submitted that the entries appearing in various records have separately been tabulated on the basis enquiry entries in different books/diaries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roviding Mandap Keeper service, M/s V.K. Bhandari has acquired premise from third party (Bhandari Farm and Resort) vide agreement dated 01.11.2009, form where they are providing service to their customers for organizing various functions. He also submitted that the department has raised demand against the Appellant (M/s Bhandari Cateres) on the ground that seized documents revealed that the common records were being maintained in respect of services provided by M/s V.K. Bhandari and M/s Bhandari Caterers and it was not possible to ascertain and segregate as to which services are provided by whom. His submission is that the firm M/s V.K. Bhandari is proprietary firm of Shri V.K. Bhandari and the firm of Appellant, M/s Bhandari caterer, is proprietary firm of Shri Santosh Bhandari. These are two separate legal entities and the appellant (M/s Bhandari Caterers) are not providing Mandap Keeper Service. Both these firms are providing Catering Service, however, Mandap Keeper Service is provided exclusively by M/s V. K. Bhandari. Therefore, even if some entries about Mandap Keeper Services are appearing in the common records of the two firms, it cannot be said that it is not possible to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons and presumption is not sustainable. 6. In regard to the demand for catering services, Ld. Advocate submits that entire demand is raised on the basis of entries of enquiries of customers and the various quotations given to them that is available in the records. Shri Santosh Bhandari in his statement recorded during the course of investigations, categorically stated that various customers approach them for enquiry of catering for their function. After discussions with these customer Appellant suggest various menus (alternative options) and accordingly issue such suggestive menus/quotations to visiting customers. They also keep record/entries of this for subsequent persuasions and negotiations with the customer. All these entries in the record does not result into provision of catering, as only few of them get materialized. Thus, he submitted that mere presence of entries or copies of suggestive menus / quotations cannot be treated as provision of catering and wherever the enquiries got materialized in provision of catering they had invariably issued bills and paid service tax. This is evident from the facts that their records which were withdrawn during visit of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in diary maintained for internal instruction purposes were presumed as catering provided for the number of persons mentioned against each entry and demand is raised. Ld. Counsel submitted that in the entire search/ investigation neither there was any recovery of unaccounted cash nor was there any confirmation from any of the person regarding provision of service to him against these alleged entries of provision of services. The Appellant had duly accounted the value of service rendered in his books of account and paid proper service tax. Demand proposed over and above the tax paid and reflected in his ST-3 returns pertains to suggestive menus/quotations provided to various persons. The Department has presumed that the services of outdoor catering were provided to all the persons to whom these suggestive menus/ quotations were issued, without there being any corroborative evidence either in the form of recovery of unaccounted cash or the statement of concerned persons. Thus demand is raised on mere presumptions and assumptions. The confirmation of demand is contrary to the law settled by catena of judgments of higher forum particularly (i) Oudh Sugar Mills Vs Union of India (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i father of Shri Santosh Bhandari (Appellant) and even if he had assisted in the activities of his father s firm M/s V.K.Bhandari, which is a separate legal entity and providing Mandap Keeper Service, demand in respect this service cannot be raised on the Appellant, as they are not providing Mandap Keeper Service. We also find that demand of service tax on Mandap Keeper service is raised on the basis of entries in record which are claimed to be entries of enquiries made by the persons desiring to acquire the premise for their functions and not the entries of service provided by the appellant. There is no evidence, in the form of statement of any person, whose, names are appearing in the entry to confirm that Mandap Keeper service was provided to them. The allegation of provision of service is made only on the basis of entries in the record without any evidence to support these allegations. The demand is thus raised on the basis of mere assumption and presumption that premises were rented against such entry. In absence any such corroborative evidences to support the allegation, demand is not sustainable. 12. Coming to the demand of service tax of Outdoor Catering Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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