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TMI Blog2024 (11) TMI 1228X X X X Extracts X X X X X X X X Extracts X X X X ..... who has made the admission to show that this is incorrect. Admission of persons, cannot be considered to be conclusive evidence to establish the guilt of the assessee. Burden of proof is on the Revenue and same is required to be discharged effectively. In the present matter tenant nowhere produced any records/piece of paper in support of their statement. The only oral statements of service recipient cannot be accepted as admissible piece of evidence. No cash receipts has been relied upon by the department, no financial flow back has been relied upon by the department for the collection of rent in cash, no rent agreement has been found by the department for the support of excess rent , no ledger entry in the books of accounts of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant before us, we, therefore, reduce the demand of Service tax from Rs. 72,61,747 to Rs. 17,82,992/- together with interest. Penalty imposed - As we find that the appellant in the present matter not disputed the liability of services tax and has admittedly paid the service tax well before the issuance of show cause notice. In these circumstances, we do not find that there was any mala fide on the part of the appellant. Therefore, benefit of Section 80 should be extended for the appellant and penalties imposed by the Ld. Commissioner are set aside. Penalty imposed under Section 76 and 78 - We are of the view that simultaneous penalty under Section 76 and 78 cannot be imposed as held in the case of Rawal Trading Company [ 2016 (2) TMI 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice dtd. 06.06.2013 was issued to the Appellant for recovery of Service tax of Rs. 70,86,927/- along with interest and penalty. In adjudication, Ld. Commissioner confirmed the demand of Service tax of Rs. 72,61,747/- and ordered for appropriation of Rs. 38,00,000/ -deposited by appellant. He also imposed the penalty under Sections 76, 77 and 78 of the Finance Act, 1994. Therefore, Appellant is in appeal against the impugned order. 2. Shri Vipul Khandhar, Learned Chartered Accountant appearing on behalf of the Appellant submits that in the present matter department alleged that the Appellant has received the rent in excess of the rent booked in the books of accounts on the basis of four tenants' statements out of total ten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culated the rent value on the basis of statements of persons. Department rely on the statements of tenants of shops in Radha Krishna Textiles Markets and statements of Shri Jerambhai Patel. The persons admitted in their statements that Appellant have collected rent in cash from the tenants. 4.1 We find that, it is settled law that though the admission is an important piece of evidence but it cannot be said to be conclusive and it is open to the person who has made the admission to show that this is incorrect. We also note that there are numerous decisions of the Tribunal laying down that such admission of persons, cannot be considered to be conclusive evidence to establish the guilt of the assessee. Burden of proof is on the Revenue and sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter appellant also produced the details of rent received from each tenant and shops during the disputed period before revenue and Ld. Commissioner. However, department has calculated the demand of service tax on all the shops for whole periods without verifying the details that whether the said shops have been given on rent during the whole disputed period or not; whether shops have been given on rent or sale basis; what is the actual rent recoverable or received by the appellant; how many month occupant s have been holding the shops as a tenant. We noticed that in the present matter revenue has not considered the proper facts while calculating the liabilities against the department. 4.3 After considering the above facts and details of qu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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