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TMI Blog2024 (10) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... retrieved. In absence of any such averment, there are no merits in this appeal. It is incorrect to say that the judgment relied upon by Commissioner (Appeals) while deciding the appeal, were in respect of the goods and not in respect of services. There are no infirmity in the order of the Commissioner (Appeals) to this extent - Appeal filed by the revenue is dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... mative and incontrovertible evidences relating to:- (i) Receipt of raw material inside the factory premises, and non-accountal thereof in the statutory records, (ii) Utilization of such raw material for clandestine manufacture of finished goods, (iii) Manufacture of finished goods with reference to installed capacity, consumption of electricity, labour employed and payment made to them, packing material used, records of security officers, discrepancy in the stock of raw materials and final products; (iv) Clandestine removal of goods with reference to entry of vehicle/truck in the factory premises, loading of goods therein, security gate records, transporters documents, such as 1. Rs, statements of lorry drivers, entries at different check posts, forms of the Commercial Tax Department and the receipt by the consignees; (v) Amount received from the consignees, statement of the consignees, receipts of sale proceeds by the consignor and its disposal. In the instant case, no such evidences to the above effect have been brought on record." The said order of the Tribunal was upheld by Hon'ble High Court of Allahabad, as reported in 2011(269) ELT 337 and further mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committing the offence of removal of goods clandestinely There is no evidence of use of inputs to prove that there was manufacture of product. There is no evidence of clearance of final goods without payment of duty. There is no statement to show as to from whom the appellant no. 2 purchased the raw material and there is no evidence of use of electricity, receipt of sale consideration to prove the event of manufacture and clearance of goods clandestinely. The Tribunal in the judgment relied by the Commissioner (Appeals) has clearly laid down that there has to be concrete avidence to prove the charge of manufacture and sale of goods without payment of duty In the absence of evidence, the Commissioner was justified in setting aside the Order-in- Original. Similarly, the entries in the notebook or details contained in the file is not sufficient to prove the charge of clandestine removal as noted in several judgments of the Tribunal relied by the Commissioner (Appeals)......." As discussed above, no corroborating evidence has been adduced by the department to substantiate the allegations made based on statement of the accountant of M/s M.P and accordingly, the same cannot be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, secretary or other officer of a company and here in this case the entity is a partnership firm and not a company. A partnership firm is not juristic entity and does not have existence independent of its partners. Hon'ble High Court, Mumbai, in the case of Amritlakshmi Machine Works Vs CC(Imp), as reported in 2017(052) STR 201, has held as under: Penalty Imposition of, on firm as well as its partner It is not permissible as unlike a company, partnership firm is not juristic entity and does not have existence independent of its partners Penalty levied on partners is recoverable from each partner individually, while penalty on partnership firm is also recoverable from partners - Hence, partners are penalized twice for same offence. Moreover, since the demand of duty is not sustainable, the penalty imposed on the appellant no. 1 is also not sustainable. 7. In view of above discussions and findings the appeals bearing nos. 428 & 429- ST/APPL-MRT/MRT/2017, both dated 03.07.2016, against the Order-in-Original No. 151- 152/Jt. Commissioner/Hapur/2016-17 dated 31.03.2017 are allowed, and the impugned order is set aside, with consequential relief." 2.0 Aggrieved Revenue ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/suppressed bills, so as to prepare statutory records for the purpose of payment of service tax. 4. The respondent could not deny the group summary print out of Mansarover Paradise & B.N. Viz & others taken from the computer system with software of accounting i.e. Tally, which was duly signed by the accountant. Further, the respondent could not put forth any cogent reason as to why an accountant being simply an employee, maintained separate records at his own level. The accountant of the respondent had no vested interest in doing so, nor could the respondent place any grounds/evidence to this effect. The accountant in his statement dated 11.02.2016 had stated that he was working as per the instructions of the partner of the firm. It is pertinent to mention that the accountant had not retracted from his statement before or during adjudication of the case. Further he text of materials downloaded for the tally ERP-9 transpires that Indirect Income is the income from services which involved income from other than sales, hence Room rent, banquet rent were covered in it. It also transpires that Income from sales as shown in the accounts of sales included heads such as catering, food, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intained falls down and creation of a company in the name of Mansrover Paradise & B.N. Viz & others and making journal entries therein of the taxable services provided from their premises, is itself a proof that they maintained two sets of accounts. The respondent could not produce any cogent reasons about the huge difference in gross value of the taxable service such as room rent, banquet rent, food sale etc as reflected in the two sets of accounts. 7. Further, Shri Chhabra was shown the unsigned bills resumed on the date of visit, which had been accepted by him. Similarly the print out of group summary of both the accounts of both the organizations taken out from the respondent's system, was also placed before him and he had aceepted his liability and being convinced by the detection of tax evasion by the visiting officers, deposited 15 Lakh and sought further time to deposit the remaining amount. 8. Further, it was the responsibility of the respondent to prove as to why & how group summary of Mansover Paradise was not genuine, and until & unless they proved contrary to what the department had worked out from the documents resumed and retrieved from their systems, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax by the respondent during the period 2010-11 to 2015-16 would prevail and the respondent's submissions made in this regard would not stand. Therefore it is a fact that the respondent short paid service tax amounting to Rs.15069480/- during the impugned period by contravening the previsions of Section 68 of the Finance Act, 1994 read with Rule 6 of the Service tax Rules, 1994. 14. Further, the respondent failed to provide the customer wise details of collection for the impugned period and the respective Bills. The Section 67 ( 2) of the Finance Act, 1994, in thus regard provided that in case service tax is not charged from the customer separately then only it should form part of gross amount and not otherwise. Further, from the statement of Sr. Manager Shri Ankur Goel stating that hard copy of Bills were not retained, it was apparent that the respondent have done so in order to evade service tax. As per the provisions of Rule 5 of the Service Tax Rules, 1994 (reproduced below) all the records shall be preserved at least for a period of five years immediately after the financial year to which such records pertain. Thus the respondent was bound by Rule 5 supra to kee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of the Finance Act, 1994, are being reproduced. 73. Recovery of Service tax not levied or paid or short levied or short paid or erroneously refunded ……. 21. From the above discussion it is evident the present case falls under clause (c), (d) & (e) of the said section, thus the extended period has been rightly been invoked and the respondents are also liable to penalty in terms of the provisions of Section 78 of the Act. 22. The appellate authority has thus erred in allowing the appeals filed by the respondents in view of various judgements in respect of clandestine removal of Excisable goods' whereas the ratio of the said judgments does not apply in the instant case where the appellants have maintained two separate sets of accounts with intent to evade the service tax liability. Accordingly, the Appellate authority has also erred by not taking into consideration the aforementioned facts of the case while allowing the appeal of the respondent." 3.0 We have heard Shri A.K. Choudhary learned Authorised Representative appearing for the appellant-revenue and Shri Dharmendra Srivastava learned Counsel appearing for the respondent. 4.1 We have con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the Commissioner (Appeals) has decided the matter before him by holding that there are no corroborative evidences available on record to establish the case made out against the Respondent on the basis of second set of data retrieved. In absence of any such averment, we do not find any merits in this appeal. It is incorrect to say that the judgment relied upon by Commissioner (Appeals) while deciding the appeal, were in respect of the goods and not in respect of services. It is the ratio decidendi, which Commissioner (Appeals) has followed, which is reproduced below: "Though the confessionals statement may be the starting point of investigations but in view of the other evidence available on record and in the absence of the other evidence indicating. clandestine removal, the same cannot be made the sole basis for deciding against the assessee. To the same effect is the decision of the Hon'ble Delhi High Court in the case of Commissioner of Income Tax v. Dhingra Metal Works 2010-TIOL-693-HC-DEL-IT laying down that though an admission is extremely important piece of evidence, it cannot be said to be conclusive." 4.3 Accordingly, we do not find any infirmity in the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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