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2014 (1) TMI 314 - AT - Service TaxDemand without issue of show cause notice - Telephone services - Demand of differential tax u/s 73 - Best Judgement Assessment u/s 72 - Held that:- Central Excise Officer, after taking into account all the relevant material which he has gathered, shall make the assessment of the value of taxable service to the best of his judgement and determine the sum payable by the assessee or refundable to the assessee on the basis of such assessment. If the assessee fails to disclose wholly and truly all material facts necessary for assessment to the assessing officer or there is failure or omission to make return under Section 70, the assessing officer is required to issue notice for the purpose of assessment or reassessment of value of taxable service - adjudicating authority has not issued show cause notice even after the direction of Commissioner (Appeals) and demanded duty under Section 73(a) of the said Act and compliance with the statutory requirement has not been made and the demand is not sustainable on this ground alone. Apart from that, Commissioner (Appeals) has given a finding that demand was made only on the amount shown in the invoice and not on the amount realized. It is also noted that Revenue is not in possession of any documentary evidence whatsoever in respect of demand - demand of tax under Section 73(a) of the Act without any notice cannot be sustained - Decided in favour of assessee.
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