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TMI Blog2024 (2) TMI 1524X X X X Extracts X X X X X X X X Extracts X X X X ..... use notice and that charges in the show cause notice have to be on the basis of books of account and records maintained by the assessee and the other admissible evidence and the transactions recorded in the books of account cannot be held to be contrary to the facts. It was further held by this Tribunal in the case of Kush Construction [2019 (5) TMI 1248 - CESTAT ALLAHABAD] that without examining the reasons for difference in the figures reflected in Form 26AS and ST-3 returns, Revenue cannot raise demand on the basis of such difference without establishing that the entire amount received by the appellant as reflected in the said returns and Form 26AS being consideration for services provided and without examining whether the difference wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MR. ANIL G. SHAKKARWAR , MEMBER ( TECHNICAL ) Shri Vineet Kumar Singh , Advocate , for the Appellant Shri Santosh Kumar , Authorised Representative for the Respondent ORDER PER : ANIL G. SHAKKARWAR Brief facts of the case are that the appellant is engaged in supply of material and provided certain services to government organisations. Appellant is registered with Service Tax. On the basis of information received from Income Tax Department, appellant was issued with two show cause notices. The first show cause notice was dated 28.12.2020. In the said show cause notice, it was stated that as per the information provided by Income Tax Department, particularly the information in Form 26AS for the financial year 2015-16, appellant has rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad received a consideration of Rs.10,14,96,519/- towards supply of goods to PWD during the financial year 2015-16 and that the said supply and sale of goods does not fall within the ambit of definition of service. Further, in para 5.9 he has recorded various works executed by the appellant and held that they were eligible for exemption under Entry No. 12A of mega exemption Notification No. 25/2012-ST dated 20.06.2012. However, he has confirmed the demand raised through both the show cause notices and imposed equal penalty. Aggrieved by the said order, appellant is before this Tribunal. 2. Heard the learned counsel for the appellant. Learned counsel for the appellant has submitted that both the show cause notices are issued by invoking exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erection, commissioning, installation, conclusion, fitting out, repair, maintenance, renovation or alteration, then no service tax was leviable. He has submitted that all the related contracts were submitted to the original authority. The original authority has taken note of it in his order-in-original but erred in not passing on the benefit of the same to the appellant and erred in confirming the demand. He has relied on this Tribunal's decision in the case of Sharma Fabricators & Erectors Pvt. Ltd. vs. CCE, Allahabad reported at 2017 (5) GSTL 96 (Tri.-All.) and also the decision of this Tribunal in the case of Kush Construction vs. CGST NACIN, Kanpur reported at 2019 (24) GSTL 606 (Tri.-All.). 3. Heard the learned AR. Learned AR has supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) that without examining the reasons for difference in the figures reflected in Form 26AS and ST-3 returns, Revenue cannot raise demand on the basis of such difference without establishing that the entire amount received by the appellant as reflected in the said returns and Form 26AS being consideration for services provided and without examining whether the difference was because of any exemption or abatement. Further, we note that charging Section 66B of Finance Act, 1994 provides for levy of service tax at a specified percentage on the value of service. Section 67 of Finance Act provides that where service tax is chargeable on any taxable service with reference to its value and such value shall be consideration in money charged by the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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