9911796707
TMI Blog2024 (9) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... case of JAIPRAKASH INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., CHANDIGARH [ 2002 (11) TMI 92 - SUPREME COURT ] has held that the demand based on Income Tax Returns and Form 26AS and/or Balance Sheet is not sustainable without proper enquiry and analysis. Further it is observed that it is the settled principle of Revenue jurisprudence that the burden to prove the allegations against the assessee rests on the department - support drawn from the decision in the case titled as COMMISSIONER OF C. EX., BANGALORE VERSUS BRINDAVAN BEVERAGES (P) LTD. [ 2007 (6) TMI 4 - SUPREME COURT ], wherein it was additionally held that if the allegations in show cause notice are not specific, the same is sufficient to hold that the notice was not given proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Shri R.M. Saxena, Advocate for the Appellant Shri Arun Sheoran, Authorized Representative for the Respondent ORDER The appellant in the present case is registered for providing taxable services. Department had an information that various service providers have shown different taxable values to the CBDT and CBIC in their returns filed by the respective departments. Based on that information, appellant was enquired vide letters dated 25.01.2021 and 13.09.2021 and was asked to inform the reason behind the difference in turnover shown in ITR vis- -vis a taxable value declared in ST-3 returns during the Financial Year 2016-17. The appellant was also enquired taxable value of service provided amounting to Rs.59,12,145/- being received by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument nor any investigation which has been dealt with in the impugned show cause notice. The show cause notice otherwise has been beyond the normal period of limitation of 30 months. The extended period has wrongly been invoked as there is no evidence on record about the alleged suppression of vital facts. The findings under challenge are therefore erroneous and incorrect. The demand is liable to be set aside not only on the merits but also being barred by time. For the said reason the order under challenge is prayed to be set aside and appeal is prayed to be allowed. Learned counsel has relied upon the decision of this Tribunal in the case of Vatsal Resources Pvt. Ltd. Vs. CCE, Surat-I reported as 2023 (68) GSTL 279 (Tri.- Ahmd.) 4. Learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd based on Income Tax Returns and Form 26AS and/or Balance Sheet is not sustainable without proper enquiry and analysis. The said decision has been followed by this Tribunal in the case of Calving Wooding Consulting Ltd. Vs. Commissioner of Central Excise, Indore reported as 2007 (7) STR 411 (Tri. Del.). As already observed above, there seems no enquiry nor any analysis to the basic aspect of nature of activity rendered by the appellant. Confirming demand, in absence thereof, but based on income tax data is therefore liable to be set aside. 8. Further it is observed that it is the settled principle of Revenue jurisprudence that the burden to prove the allegations against the assessee rests on the department. I draw my support from the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee nor has been seized from his premises or control. This observation is sufficient to hold that presumption as to document as available under Section 36A of Central Excise Act, 1944 is not applicable to the DGS and DM s letter dated 22.05.2019 based whereupon the impugned show cause notice was issued and the demand proposed therein has been confirmed on the same basis. The document is not at all admissible into evidence. Hence the very basis of department s case vanishes. I draw my support from the decision relied upon by the appellant i.e. Vatsal Resources Pvt. Ltd. (supra) 11. With these observations and findings, I hereby set aside the order under challenge. Consequent thereto, the appeal stands allowed. [Order pronounced in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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