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TMI Blog2019 (6) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee agreed to pay one and not the other when the entire demand is based on the same evidence. Therefore, we find that the order of the first appellate authority is liable to be set aside. The demand of the service tax, interest and penalties as imposed by the lower authority stand restored - Appeal allowed - decided in favor of Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... ity vide his order dated 29.10.2009 confirmed the demand and interest and imposed penalty of equal amount under Section 78 and also imposed penalty of ₹ 1,000/- under Section 77. No penalty was imposed under Section 76 holding that since sections 76 & 78 were mutually exclusive, penalty cannot be imposed under both. 7. A personal hearing before the first appellate authority was held on 19.10.2009 and the assessee filed a reply dated 16.10.2009 in which they denied the contents of the private notebook stating that they were just a creation by over enthusiastic officers. They also filed a sworn affidavit by Shri Prasada Rao denying the accuracy of the contents of the notebook. During personal hearing they alleged that the officers forced Shri Prasada Rao to write the alleged entries in a notebook and that it was nothing but a confession obtained under threat, duress and coercion. They further argued that the entries in the notebook are not corroborated by any evidence. Not agreeing with the arguments of the assessee, the lower authority confirmed the demand and imposed penalties under Section 77 & 78. 8. Aggrieved, the assessee filed an appeal before the first appellate autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that not only has the Director admitted the evasion of service tax during the Panchnama but also handed over cheques to cover the amount under the cover of their letter dated 18.10.2008. He further, followed it up with another letter dated 30.10.2008. Further, on 24.11.2008, they paid an amount of ₹ 4 lakhs. None of these letters were retracted or denied at any point of time but were retracted only when filing a reply to the show cause notice almost one year after the notebook was seized. This is clearly an afterthought. The first appellate authority confirmed the amount of ₹ 5,17,604/- only, which is also based on the same search proceedings, Panchnama and the same documents, while he rejected the rest on the ground that assessee has accepted one part of the demand only. (5) The first appellate authority held, "It is further observed by the lower authority that it is well settled principle that department is not required to establish the case with mathematical precision. If this reasoning is accepted it would tantamount to gross violation of the principles of natural justice and result in very vague demand getting confirmed." This finding of the first appellate au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch he had submitted) to the bank. Some weeks later he sent another letter to the department enclosing copies of the balance sheets and ST-3 returns. The contention of the learned counsel for the assessee before us as well as before the original authority in response to the show cause notice was that the notebook did not reflect the value of taxable services rendered and fees received by them but not reflected in their returns. In fact, the Director of the assessee firm was forced by the officers during the search to write several figures as dictated by the officers in a notebook which is being relied upon. We are unable to accept this contention because any person who does something under threat, coercion or duress immediately protests as soon as the threat or coercion is removed. If the officers of the Central Excise who conducted the search had pressurized the Director of the assessee firm to write something he would have said so as soon as the search is over and would have complained to the officers themselves or to the Commissioner or to the Board or to a Court of law. He did no such thing. In fact, he even gave a letter explaining that the figures in the notebook reflect the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st appellate authority has wrongly rejected the entries in the notebook recovered ignoring the fact that this were followed by a letter hand written by the Director himself disclosing that these entries referred to the value of taxable services rendered on which no service tax was paid and also submitted cheques towards the service tax. He has also ignored the fact that the contents of this letter were not retracted by the assessee for about one year. The first appellate authority was wrong in holding that since there is no statement under Section 14 of the Central Excise Act, there is nothing to retract. When a handwritten letter was given by the Director of the assessee explaining the figures in the notebook along with cheques for the differential Service Tax, if such a letter was given under duress, any man of ordinary prudence would retract it. It is only in response to the show cause notice the assessee took the stand that the notebook was written under duress. The first appellate authority was wrong in holding that the contents of the letter dated 18.10.2008 were retracted at the first available opportunity. In fact, the retraction was made after about a year and can only be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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