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TMI Blog2020 (1) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision of service rules have not been quoted in the later 4 show cause notices and that Negative list provisions have not been quoted in the show-cause-notices. - case of Revenue is that Appellant failed to provide the relevant evidence despite demand from the department. HELD THAT:- The burden was on the Revenue to prove the alleged shortcoming after the records of Appellant along with their C.A. certificate was already produced before the adjudicating authority. In the given circumstances, neglecting those evidences and without referring to any other evidence proving short payment on part of Appellant, confirmation of demand is not sustainable. The same is to be set aside. There is also a plea that a show cause notice dated 20.10.2008 cannot be referred to as the previous show cause notice for proposing the demand in impugned four show cause notices, appellants had submitted that no elaborate basis of charge was given in any of the subsequent show cause notices except making a reference to the previous show cause notice of 20.10.2008 - HELD THAT:- No scrutiny of record was done nor any document was examined. The demand is alleged to have been mechanically raised by simply ascert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axable services. The department observed that service tax was payable on various income also under reverse charge on expenses in foreign currency such as commission on sales etc. Alleging the non-payment of service tax with respect to the services vide separate show cause notices following demands have been proposed to be recovered from the Appellant along with the interest at appropriate rate and the proportionate penalties. Sr. No. Ist SCN dated 29.09.2010 2nd SCN dated 17.10.2011 3rd SCN dated 20.12.2012 4th SCN dated 25.04.2014 1. Lease rent income (under Renting of Immov Property service) 0 0 84699 148641 2. R&D Income (under Scientific & technical consultancy service) 96389 0 0 37005603 3. Commission on sale (under Business Auxiliary Service) 811307 1070375 8026892 5475830 4. Know How fee (under Scientific & technical consultancy service) 29888 0 425684 2029037 5. Professional & Consultancy Expensis (under Scientific & technical consulltancy service) 401332 50594 17045 855330 6. Analytical testing Charges (under Technical Testing and Analysis Service) 2620 0 0 154273 7. Advertisement expenses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall not prevail in case of conflict between the balance sheet and the returns filed. Reliance has also been placed on the decision of Tribunal, Mumbai in the case of Raymond Ltd. Vs. Commissioner of Service Tax, Mumbai-ii reported as 2018 (19) GSTL 270 to impress upon that the amount deducted in foreign currency from export proceed on account of collection charges of foreign bank are not taxable at the hands of Indian recipients in as much as such changes were not directly collected from him by the foreign bank. Finally, laying emphasis upon the decision of Hon'ble Apex Court in the case of Commissioner of Central Excise, Bangalore Vs Brindavan Beverages Pvt. Ltd. reported as 2007 (213) ELT 487 that if the allegations in show cause notice are not specific, the same is sufficient to hold that noticee was not given proper opportunity to meet the allegations in the said show cause notice, the Appellant has prayed for the appeal filed by them to be allowed and the crossed appeal filed by the department objecting the quantum of penalty under Section 76 of Finance Act, 1962 to be dismissed. 5. Per contra learned DR has submitted that infact Appellant failed to provide the relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tual property service; 10. Commercial Coaching & Training Service : (zzc) to any person, by a commercial training or coaching centre in relation to commercial training or coaching; 11. Banking & other Financial Services : [(zm)4[to any person], by a banking company or a financial institution including a non-banking financial company or any other body corporate 5 [or commercial concern], in relation to banking and other financial services;] 7. From the order in original dated 29.01.2015 as has been challenged in the impugned appeals, we observe that demand has been confirmed on the following grounds : (i) R&D Income (under Scientific & technical consultancy service): service provided by the appellant to M/s Solvey that all the conditions of export as per rule 3(1)(iii) of the Export of Service Rules, 2005. (ii) The demand with respect to lease rent income know-how fee, professional and consultancy expenses has been confirmed for want of any supporting evidence. In this respect, we observe that demand on all above accounts has been raised based on the details of the balance sheet which are contrary to the details of the returns. Appellants have placed on record the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice for proposing the demand in impugned four show cause notices, appellants had submitted that no elaborate basis of charge was given in any of the subsequent show cause notices except making a reference to the previous show cause notice of 20.10.2008. No scrutiny of record was done nor any document was examined. The demand is alleged to have been mechanically raised by simply ascertaining that the difference between the tax payable on balance sheet figures of income/expenditure and the tax paid as per ST-3 Returns is alleged to have been evaded that too by suppression of facts. 10. We observe that there is no denial of the department about Appellants to have provided the information as was demanded by the department about the income earned and expenses incurred for the period in question. 11. Perusal of four of these show cause notices shows that nothing has precisely been discussed in the show cause notice for the impugned period. All these show cause notices are speaking about the records from 01.04.2009 to 31.03.2010 which apparently and admittedly is not the period of demand in any of these show cause notices. The show cause notices are opined to be vague. We draw our sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case some vital facts also changed. For example, in 2012-13, the export of R&D service was provided to Osmotica Kereskedeimis of Hungary [ref: para 121.2 at page 218], an altogether different company than Solvey Pharmaceuticals of Netherlands [ref: para 14 at page 107] to who the export of R&D was made in 2003-04 to 2008-09. The terms of contract were different. Therefore, no reliance can be placed upon the reasoning of the contract of 'Solvey' to the export made in 2012-13. (ii) In the previous notice in respect of the allegation of non-payment of service tax on renting, the reference was to income earned from renting of immovable property. This is not the case in subsequent notices. In these notices the reference is to income from residential flat renting. The legal provisions are different for these two. 14. None of the show cause notice confirms the said criteria above all four of these show cause notices involved the period prior the aforesaid amendments. Hence, this amendment is of no benefit to the department in impugned case. 15. We further that Tribunal, vide final order No. 55142/2017 vide which the appeal of the present assessee with respect to the earlier Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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