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2018 (7) TMI 863 - AT - Service TaxValuation - Commercial coaching and training services - inclusion of value of study material - Burden to prove on Revenue - Held that:- Department has stated that there were no separate records to indicate the salary received by Prof. Thomas and the cost of the study material, it is found that the SCN itself has categorically stated these amounts differently. It is for the Department to show that the cost of materials is not separately shown and that the professional charges were not towards the classes conducted by the respondent in M/s/ Chaithanya Classes; the Order-in-Original wants the respondents to prove the otherwise - having accepted that fact; the same cannot be included in the value of the taxable service in terms of the Notification No. 12/2003- Service Tax; therefore, we find that the demand on this count is not sustainable. Salary or remuneration received by the respondent - Held that:- Neither the SCN nor the Order-in-Original give a categorical finding or evidence to show that the respondent’s contention on this count is wrong. In fact, it was for the Department to show proof to that extent rather than going by the premise that the respondents have not shown any proof to that effect. Since the Department has made the allegations, it was for the Department to prove the same - In the absence of any proof shown by the Department, salary/remuneration earned by the respondent cannot be taxed under Service Tax. As the main demand does not survive in pursuance of the interest and penalty would also not survive as a corollary. Appeal dismissed - decided against Revenue.
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