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2021 (2) TMI 8 - HC - Service TaxRequirement of showing the trading turnover and ‘non-taxable’ services in the periodical ST-3 returns - Existence of column in ST- 3 form dealing with “non-taxable turnovers” under the Finance Act, 1994 - HELD THAT:- When there is no such column in ST-3 returns dealing with “non-taxable turnovers”, petitioner cannot be blamed by the respondents for not indicating the ‘non-taxable’ turnovers in the ST-3 return and it cannot be penalized for the same ignoring all the other material evidence which has already been submitted by the petitioner to the respondents on various occasions as mentioned in para 13 of the affidavit filed in support of the Writ Petition and also the letters dt.10.04.2017 and dt.17.10.2017 including the audit reports relating to the audit of their accounts, work sheets, etc. The 4th respondent ought to have examined the said material which was already available with the 1st respondent-department to test the petitioner’s defence i.e., that for the financial year 2011-12, petitioner had executed only irrigation and canal projects, which were exempt vide Notification No.41/2009/ST dt.23.10.2009, and that from 2012-13 onwards, petitioner was executing electrical works also and was discharging service tax liability on the taxable turnover, and the difference between the Balance Sheet and the ST-3 returns is because of this reason - the 4th respondent could also have asked the petitioner to furnish such material, if he could not find it in the file during the course of the personal hearing, and he could not have penalized the petitioner on the said ground. Such action of the 4th respondent vitiates the impugned order. In M.P. Special Police Establishment v. State of M.P. [2004 (11) TMI 524 - SUPREME COURT] the Supreme Court held that non-consideration of material on record by an authority would vitiate the exercise of power by the said authority. The impugned Order passed by the 4th respondent cannot be sustained and that the matter must be remitted to the 4th respondent to consider afresh - Petition allowed by way of remand.
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