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TMI Blog2024 (7) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... ner (Appeals) has upheld the Order-In-Original No. 71/ADJ/ADCRN/ OA/2015-16 dated 30.10.2015. 1.1 Briefly stated the facts of the case are that appellant was engaged in providing outdoor catering services and business auxiliary services and were registered with the service tax department since 25.11.2004 and deposited service tax towards provision of such services and filed ST-3 returns from time to time. During the month of December 2009, an inquiry was initiated by the department and in response to the summons dated 3.12.2009 the appellant provided sales bill, bank statement, catering booking menu, order booking book for the period 2009 -2010. Further in response to the summons dated 8.2.2010, the representative of the appellant Shri Bha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the show cause was confirmed by Order-In-Original (OIO) dated 30.10.2015 passed by the Additional Commissioner, Surat. Learned Commissioner (Appeals) Surat vide his Order-In-Appeal (OIA) dated 11.07.2017 upheld the aforesaid OIO dated 30.10.2015 against which the present appeal is filed. 2. Shri Rahul Gajera, learned Advocate appearing on behalf of the appellant submitted that appellant was registered assessee since 2004 and had duly discharged their Service Tax liability under the category 'Outdoor Catering Services' and 'Business Auxiliary Services' and filed Service Tax returns for the disputed period. That the demand of Service Tax amounting to Rs. 40,42,214/- has been raised by the department solely based on the bank sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtered accountant cannot be relied upon being not relevant as they have not been examined by the adjudicating authority following mandate of section 9D of the Central Excise Act, 1944 applicable to the provisions of Finance Act, 1994. 3. Shri Himanshu P Shrimali, Learned Superintendent (AR) appearing for the department has contended that discrepancies between the ST-3 returns and bank statements is not explained sufficiently, and hence impugned order is required to be upheld. He reiterated the observations made in the impugned order. 4. We have carefully considered the submission made by both the sides and perused the records. The issue to be decided in the present case is whether demand of service tax based on the differential amount wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to in clause (a) of Section 9D(1) of the Act would apply. In view of this express stipulation in the Act, it is not open to any adjudicating authority to straightaway rely on the statement recorded during investigation/inquiry before the Gazetted Central Excise Officer, unless and until he can legitimately invoke clause (a) of Section 9D(1). In all other cases, if he wants to rely on the said statement as relevant, for proving the truth of the contents thereof, he has to first admit the statement in evidence in accordance with clause (b) of Section 9D(1). For this, he has to summon the person who had made the statement, examine him as witness before him in the adjudication proceeding, and arrive at an opinion that, having regard to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri.-Del): The Tribunal held that mere difference in figures appearing in the trial balance as compared to the ST-3 returns, without any corroborative evidence that taxable services had indeed been provided by the assessee, cannot be upheld. ii. Umesh Tilak Yadav v. Commissioner of Central Excise, Nagpur - (2024) 15 Centax 161 (Tri.-Bom) : The Tribunal held that a demand of service tax merely on the difference between figures of the ST Return and IT return was not sustainable without establishing that the consideration was received for an activity covered under the definition of services under the Finance Act, 1994. It is essential to establish that value on which such service tax was calculated was in terms of section 67 of the Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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