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TMI Blog2024 (5) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoice. Apparently and admittedly no further investigation has been conducted in this case at the end of appellant by the adjudicating authority. Appellant being a registered service provider is filing the ST-3 returns, demand cannot be raised on the basis of Form 26AS. The difference in figures reflected in ST-3 returns and Form 26AS filed under Income Tax Act can also not be the basis for raising service tax demand without examining the reasons for such difference and without examining as to whether the amount which is reflected in income tax return was the consideration for providing any taxable services or the difference was due to any exemption or abatement. The demand cannot be confirmed. Finally it is observed that the original adjudicating authority has acknowledged receiving ST-3 returns filed by the appellant and the deposit of service tax as was self-assessed by the appellant, the same is sufficient to falsify the alleged suppression, on the part of the appellant. The decision of M/S KALYA CONSTRUCTIONS PRIVATE LIMITED VERSUS THE COMMISSIONER, CENTRAL EXCISE COMMISSIONERATE, UDAIPUR [ 2023 (12) TMI 1211 - CESTAT NEW DELHI ] is applicable to the facts of the present case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for financial year 2012-2013. But the appellant failed. Therefore service tax liability has been calculated on whole amount received by the assessee, as per third party TDS data for the period financial year 2012-2013. Service Tax of Rs. 4,25,665/- is proposed to be recovered with interest and penalties. Show cause notice (SCN) No. 120/2017-18/362 dated 19.04.2018. The SCN is issued invoking extended period of limitation as the appellant is alleged to have suppressed facts from department with intent to evade payment of service tax. 3. No reply to show cause notice was filed nor appellant appeared before original adjudicating authority except a letter dated 05.12.2018 was submitted based whereupon order-in-original No. 72/2018-2019 dated 06.02.2019 was passed confirming the aforesaid proposal. In an appeal against the said order Commissioner (Appeals) vide order-in-appeal No. 25/2020 dated 05.02.2020 remanded the matter directing fresh decision based on requisite documents to be provided by the appellant. The appellant gave written submission vide letter dated 01.09.2020. The order-in-original No. 42/2020-2021 dated 31.03.2021 was passed again confirming the demand. However, Rs. 56 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudicating authority. The matter was remanded given directions to the appellant to submit all the documents and to make averments. Post remand also several opportunities of personal hearing were given to the appellant, but he did not attend the same except that reply to show cause notice was submitted on 01.09.2020 and once appearance was marked on 20 February 2021. The order under challenge is thus passed due to non-submission of relevant document like payment ledger, Form 26AS, invoices etc. 7. It is mentioned that whatever invoices have been submitted there is apparent over-writing in the dates of the invoices. The said cutting is sufficient act of mis-representation as well as suppression. Hence, extended period has rightly been invoked. The service tax of Rs. 56,010/- which has been already paid by the appellant has duly been appropriated by the adjudicating authority due to which the demand of Rs. 4,25,665/- has been reduced to Rs. 3,69,655/-. The decision in M/s Kalya Constructions Private Limited versus The Commissioner, Central Excise Commissionerate, Udaipur vide Final order No. 51550-51551 of 2023 dated 15.11.2023 is not applicable because period involved therein was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had already supplied the detailed Form 26AS statement/record of Income Tax Department along with the requisite invoices and the documents showing the value of sale of goods while rendering the service. The perusal reveal that the amount received for rendering taxable service for the period w.e.f. July 2012 to March 2013 is Rs. 9,40,184/- only as contrary to Rs. 34,43,895/- as has been mentioned in the show cause notice. This observation itself is sufficient to falsify the above findings in the impugned order-in-appeal. The Form 26AS and related documents as relied upon by the department are for the period April 2012 to March 2013. The period in dispute is from July 2012 to March 2013. Hence the amount shown received for period April July 2012 need to be deducted from the total amount shown in the documents relied upon by the department to calculate the amount received by appellant for rendering taxable service during the disputed period. 11. The invoices produced by the appellant reflects that amount of Rs. 4,29,771/- is the value of the parts of vehicle, which were replaced while rendering maintenance services to the vehicles. Though the department has relied upon department clari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the original adjudicating authority has acknowledged receiving ST-3 returns filed by the appellant and the deposit of service tax as was self-assessed by the appellant, the same is sufficient to falsify the alleged suppression, on the part of the appellant. I draw my support from the decision of Hon'ble apex Court in the case of Anand Nishikawa Co. Ltd. versus CCE, Meerut reported as 2005 (188) E.L.T. 149 (S.C.) where it has been held and is followed till date that : Suppression of facts can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty. When facts were known to both parties, the omission by one to do what he might have done not that he must have done would not render it suppression . It has been clarified by Hon'ble Supreme court that there must be some positive act from the side of assessee brought on record by department to find willful suppress. In the present case, appellant was regularly filing returns and there is no evidence of any such positive act of appellant as may reveal the malafide intention of appellant to evade tax. The extended period is, therefore, held to have been wrongly invoked. Decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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