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TMI Blog2023 (9) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,103/- from various parties, during the Financial Year 2015-16. The Appellant has neither taken Service Tax Registration nor paid any service tax for the Financial Year 2015-16. The department alleged that the Appellant has suppressed the gross amount received by them in respect of services rendered and they have not paid Service Tax to the tune of Rs.23,10,735/- on the taxable value of Rs.1,59,36,103/- during the financial year Financial Year 2015-16. 2. A Show Cause Notice dated 09.12.2020 was issued to the Appellant demanding Service Tax of Rs.23,10,735/- along with interest and penalty. The Notice was adjudicated vide Order-in-Original dated 08.07.2021, wherein the demand of service tax of Rs.23,10,735/- made in the Notice was confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted at their end to ascertain the nature of activities carried out by them and whether they are liable to pay service tax on these amounts. Further, these figures are included in their profit/Loss Account in the Balance Sheet, which is a Public document and so there can be no suppression. Moreover, the Department has not adduced any positive evidence to show any malafide intention or mensrea for evasion of Service Tax. 5. The Appellant relied on the judgment rendered by the Hon'ble Apex Court in the case of Caprihans India Ltd., Vs. Commissioner of Central Excise, Surat, reported in 2015 (324) E.L.T. 8 wherein it was held that when the facts were already in the knowledge of the department, notice invoking extended period cannot be issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racted/s O.K. Movers & Minerals Pvt. Ltd used the JCB/ Trucks hired from them for rendering .Goods Transportation' service to M/s Electro Steels Ltd, Bokaro, who paid service tax for the GTA service under reverse charge. They have never carried out any transaction of "Supply of Tangible Goods Service" or of "Goods Transport Agency Service" but on the contrary they have given the JCB and Trucks to the contractor and collected only hire charges viz., rent on the same on monthly basis. They did not provide any facility such as driver, repair and maintenance, fuel etc. Once the JCB & Trucks rented out, the entire possession and control was with the Contractor and during the period of renting, there was no interference by them. Hence, the servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under any particular category of service. The bills submitted by the Appellant indicate that they have raised monthly bills for 'Hire Charges for Trucks'. These Bills indicate that the Appellant have charged rent on the tangible goods namely, JCB and Trucks, on the basis of number of days of Hire. Prior to 01.07.2012, such supplies were liable to service tax under the category of 'Supply of tangible goods' as defined under Section 65(105)(zzzzj) of the Finance Act, 1994. With effect from 01.07.2012, the transfer of goods by way of hiring, leasing, licensing or any such manner without transfer of right to use such goods has been declared as 'deemed service'. Accordingly, the impugned order has rightly demanded service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rucks, on the basis of number of days of hire. Prior to 01.07.2012, such supplies were liable to service tax under the category of 'Supply of tangible goods' as defined under Section 65(105)(zzzzj) of the Finance Act, 1994. With effect from 01.07.2012, the transfer of goods by way of hiring, leasing, licensing or any such manner without transfer of right to use such goods has been declared as 'deemed service'. Accordingly, the impugned order has justified the demand of service tax by treating the entire amount shown in the AS26 statements as amount received towards rendering of taxable service. 14. We observe that prior to 01.07.2012, in order to classify a service under the category of 'supply of tangible goods service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f service tax cannot be determined merely on the basis of Income Tax Returns / Form 26AS. The Appellant also relied on the decision of the Tribunal in the case of M/s Luit Developers Private Limited Vs. Commissioner of CGST & Central Excise, Dibrugarh, wherein this Tribunal has held similar view that the demand cannot be based on AS26 statement received from Income Tax department, without any corroborative evidence. 17. From the decisions cited above, we observe that the demands confirmed merely on the basis of the data available in the Income Tax Returns/AS26 Statements is not sustainable. It must be established that the amount shown in the AS26 statements are actually received in connection with taxable service rendered by the Appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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