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 718 - AT - Service TaxScope of SCN - Presumption with regards to documents seized - Revenue strongly argued that the Appellant have filed fresh and new evidences before this Tribunal by submitting for the first time and said fresh evidence/documents are not allowed - evasion of service tax - Business Auxiliary Service - Advertising Agency Service - Market Research Agency Service - Management or Business Consultancy Service - tax collected from customers but not paid to Revenue - burden to prove - demand alongwith Interest and penalty - HELD THAT:- This Tribunal being the final fact finding authority can consider the additional documents/arguments - On this legal issue the decision of the Hon’ble Supreme Court (Three Member Bench), in the case of NATIONAL THERMAL POWER COMPANY LIMITED VERSUS COMMISSIONER OF INCOME-TAX [1996 (12) TMI 7 - SUPREME COURT], is noted, 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. In view of Section 36A of Central Excise Act, 1944 it is only when such document is tendered in evidence against the person who produced the same or from whose custody or control it was seized that the presumption under Section 36A is available - In the present case admittedly none of the alleged invoices / documents was produced by the Appellant or seized from the Appellant’s premises or control. In view of the above, when the presumption under Section 36A is not available. The burden of proof is squarely on the Department to prove that the source documents are related to the Appellant and that any taxable services under the source documents were actually provided by the Appellant. This burden has not been discharged in the present case. The department could not have simply accepted the customers” documents provided by them on its face value and the same needed strict corroboration which is completely absent in the present case. 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 have 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. 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 and the same is accordingly set aside - appeal allowed.
|