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2016 (8) TMI 94 - HC - Service TaxBest judgement assessment to determine service tax liability - Validity of show cause notice - failure of the Respondent to furnish the requisite information, and further failure to file returns under Section 70 of the Finance Act, 1994 - Held that:- In the impugned order, the CESTAT noted that in the SCN there was no allegation that in terms of Section 72 (b) of the Act, the Respondent had filed a return and failed to assess tax in accordance with the provisions of law. The SCN entirely proceeded on the basis that the Respondent had failed to file a return which was factually incorrect. Further the letters by which information was asked for the period in question failed to specify what information was to be provided. Consequently the SCN was "only on the basis of assumption and presumption." Consequently, the CESTAT held the SCN to be not maintainable. Department, was unable to point out how Section 72 (a) could possibly be invoked when a admittedly the return for the period April to September, 2009 had been filed on 22nd October 2009 and for the period October 2009 to March 2010 on 22nd April 2010 with the jurisdictional service tax office. Therefore, the factual basis on which the SCN was issued invoking Section 72(a) of the Act was nonexistent. Secondly, the SCN does not make out a case for invoking Section 72 (b) of the Act. Consequently, the question of adopting best judgment assessment did not arise. Consequently, the CESTAT was right in concluding that the second SCN dated 20th October 2010 was not maintainable. - Revenue appeal dismissed.
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