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TMI Blog2024 (3) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... the initial round of litigation before the Commissioner (Appeals) the matter was remanded to the original authority for consideration of certain documents tendered by the original authority. 2. The present dispute involves a demand for payment of service tax for an amount of Rs. 8,86,151/- for the financial year 2014-15 to 2016-17 on "manpower supply services" rendered by the appellant. The order in appeal also confirms a penalty of equal amount under section 78 of the Finance Act as well as also imposes of penalty of Rs. 10,000/- under section 77(2) of the Finance Act. 3. I have heard Ms. Priyanka Goel, learned counsel for the appellant and Shri V J Saharan, learned authorized representative for the department and perused the appeal rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be paid by M/s Prism Johnson against the total tax liability for the financial year 2014-15. And in subsequent years service receiver was liable to pay 100% service tax toward service tax liability. The appellant further alleges that issuance of the show cause notice solely on the basis of 26 AS statement is also bad in law and is contrary to the decision of this Tribunal rendered in the case of Quest Engineers & Consultants Pvt. Ltd. Vs. Commissioner, CGST & C. EX., Allahabad 2022(58) GSTL 345 (Tri.-All) as also in the case of Kush Constructions vs. CGST NACIN, ZTI, Kanpur 2019 (24) GSTL 606 (Tri-All). 6. Learned authorized representative appearing for the department has submitted that the appellant failed to correctly show the computati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention of the department that they came to know of the appellant's activities only through the 26 AS statement is nothing more than plainly frivolous, as the appellant had been regularly submitting the ST-3 returns and paying tax as leviable on the "manpower service" rendered. There is nothing to show from the records that the appellant was not properly maintaining the books of account or had not recorded the various transactions. The department has nothing to substantiate its case, except for some bland statements that are essentially presumptive in nature. Moreover, 26 AS is not a prescribed statement/document for purpose of determination of service tax liability. It was for the department to lead its case with cogent evidence. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of difference between the two. We note that Revenue cannot raise the demand on the basis of such difference without examining the reasons for said difference and without establishing that the entire amount received by the appellant as reflected in said returns in the Form 26AS being consideration for services provided and without examining whether the difference was because of any exemption or abatement, since it is not legal to presume that the entire differential amount was on account of consideration for providing services. We, therefore, do not find the said show cause notice to be sustainable. In view of the same, we set aside the impugned order and allow the appeal." 12. In view of the discussions aforesaid, and the legal position ..... X X X X Extracts X X X X X X X X Extracts X X X X
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