Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2022 (7) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (7) TMI 716 - AT - Service TaxEvasion of service tax - allegation that appellant have collected the service tax from the customers but not paid it to Department - availment of cenvat credit without having any corroborative evidence - suppression of facts or not - whether this tribunal is competent to consider the fresh documents submitted first time for deciding the present case? - HELD THAT:- It is held in catena of cases that the tribunal is the final fact finding authority, any documents even submitted first time before this tribunal can be considered in the interest of justice. Hon’ble Supreme Court (Three Judges Bench), [1996 (12) TMI 7 - SUPREME COURT], which is to the effect that the Tribunal has jurisdiction to examine the question of law which arises on facts, as found by the authorities below, and having bearing on tax liability of assessee, even though said question was neither raised before the lower authorities nor in appeal memorandum before the Tribunal, but sought to be added later as an additional ground by a separate letter - the Law/Rules has not precluded CESTAT for considering new grounds/ evidence. Section 9D is applicable in the case of Service Tax matters also. The Department for confirmation of service tax demand also relied on the statement of the Director of the Appellant. We find that, it is settled law that though the admission is extremely important piece of evidence but it cannot be said to be conclusive and it is open to the person who has made the admission to show that this is incorrect. - there are numerous decisions of the Tribunal laying down that such admission of persons, cannot be considered to be conclusive evidence to establish the guilt of the assessee. Burden of proof is on the Revenue and same is required to be discharged effectively. The details contained in records of service recipient cannot be accepted as admissible piece of evidence. Moreover, none of the persons on whose statement reliance was placed by the department were cross-examined. On the basis of documents/ records received from customers of Appellant revenue alleged that they have collected the service tax payment. However on the basis of records of other persons it cannot be concluded that Appellant has collected the service tax from their customers. In the present matter revenue in support of their contentions nowhere produced any corroborative evidence in the form of Bank Details or any documents recovered from the business premises of the Appellant by which it can be concluded that Appellant have collected the Service tax. In the present matter department clearly failed to prove the case that Appellant have collected the service tax from their customers. CENVAT Credit - HELD THAT:- The charges against the Appellant that they have not produced the input service documents on which they have taken cenvat Credit, It is found that contrary to this fact, the appellant has recorded the receipt of the input services in their cenvat account and produced the cenvat credit account along with input service invoices on the basis of which Cenvat credit has been availed by them - there are no reason to deny the Cenvat Credit. Other issues such as Limitation, demand to be made under Section 73 or 73A, omission of Chapter V the Finance Act, 1994 vide Section 173 of CGST Act etc. are not dealt with and the same are kept open - the demand of service tax (except the amount of service tax payable as per the appellant, admitted by the appellant and deposited as stated in the appellant’s submission) interest and penalty is not sustainable - appeal allowed.
|