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TMI Blog2024 (5) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... h alleges that the appellant has rendered some services to M/s Signature Global (India) Pvt Ltd, it has not been made clear what was the classification of the service and what was the consideration received for the same. In the absence of specific service being identified, it is not open for the Department to assume that some service was made and therefore service tax is payable. This approach is not legally sustainable; it is the responsibility of the person alleging to prove the allegation with evidence; the Department failed to do so; moreover, an attempt has been made to confirm the duty of service tax on the basis of discrepancy in various statements and figures. It has been held in number of cases that such confirmation of tax is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made under mistake of fact and law fails.' There are no merit in the impugned order; accordingly, the same is liable to be set aside - appeal allowed. - MR. S. S. GARG, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Present for the Appellants: Mr. Atul Kumar Gupta, C.A. Present for the Respondent: Mr. Siddharth Jaiswal Mr. Aneesh Dewan, Authorized Representatives ORDER The present appeal is directed against the impugned order dated 26.12.2022 passed by the Commissioner of Central GST Central Excise, Rohtak. 2. Briefly stated facts of the case are that the appellant is engaged in the business of manufacture and supply of Ready Mix Concrete to various projects; acting upon an intelligence received from DGARM, the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt Ltd vs. CST, Delhi 2012 (25) STR 357 (Tri. Del.) CST vs. GMK Concrete Mixing Pvt Ltd 2015 (38) STR J113 (SC) Wagad Infra Projects Pvt Ltd vs. CCE ST, Vadodara 2022 (59) GSTL 95 (Tri. Ahmad) Commr. vs. Vikram Ready Mix Concrete Pvt Ltd 2016 (42) STR J282 (SC) Perfect Ready Mix Concrete vs. CCE ST, Vadodara 2022 (1) TMI 862 3.2 The learned C.A. further submits that the appellant has paid central excise duty as well as VAT on the impugned products and therefore, charging service tax is not sustainable. In this regard, he relies on the following judgments: Agarwal Metal Works Pvt Ltd vs. Commr of CGST, Alwar 2022 (65) GSTL 372 (Tri. Del.) Osnar Chemical Pvt Ltd vs. Commr of C.E., Bangalore-II 2009 (240) ELT 115 (Tri. Bang.) Brindavan Bottl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aipur 2024 (3) TMI 1103 CESTAT NEW DELHI Khandwala Securities Ltd vs. CST, Mumbai-I - 2015 (40) STR 738 (Tri. Mumbai) CST, New Delhi vs. Kamal Lalwani 2017 (49) STR 552 (Tri. Del.) Shri Balaji Industrial Products Ltd vs. CCE, Jaipur 2019 (370) ELT 280 (Tri. Del.) Uniworth Textiles Ltd vs. CCE, Raipur 2013 (288) ELT 161 (SC) Simplex Infrastructure Ltd vs. CST, Kolkata 2016 (42) STR 634 (Cal.) 3.5 The learned C.A. further submits that the duty was confirmed without giving the benefit of cum-duty which is due to the appellant. He also submits that demand has been confirmed wrongly taking the higher rate of duty of service tax. He also submits that in view of the fact that there is no suppression etc with the intent to evade the payment of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e records of the case, we find that the Department though alleges that the appellant has rendered some services to M/s Signature Global (India) Pvt Ltd, it has not been made clear what was the classification of the service and what was the consideration received for the same. In the absence of specific service being identified, it is not open for the Department to assume that some service was made and therefore service tax is payable. This approach is not legally sustainable; it is the responsibility of the person alleging to prove the allegation with evidence; the Department failed to do so; moreover, an attempt has been made to confirm the duty of service tax on the basis of discrepancy in various statements and figures. It has been held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue that amounts shown in the Income Tax returns or Balance Sheet are not liable for Service Tax. In view of these judgments, the appellant succeeds on this ground also. The impugned order is set aside and the appeal is allowed. 12 . We also find that Tribunal in the case of Indian Oil Corporation - 2020 (32) GSTL 350 (Tri. Kolkata) held that: 8. Having heard both the sides, we are of the view that the entire operation of transportation of the crude from Haldia port to BRPL is covered by a single contract. The terminal facilities are only intermediate operation of the transportation of the goods through pipeline. Since, the requisite amount of the service tax has already been paid on the service of transportation through pipeline provi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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