Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2022 (8) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (8) TMI 928 - AT - Service TaxLevy of service tax - Works contract services - demand on the basis of 26 AS statements - whether the show cause notice is issued in violation of the instruction issued by the Board in Circular 1053/02/2017-CX dated 10.03.2017? - mandating of pre show cause notice consultation, for show cause notice involving duty demand of Rs. 50 Lakhs and above - benefit of N/N. 25/2012-ST dated 20.06.2012 - HELD THAT:- As the department is alleging that the appellants have evaded payment of service tax, it is incumbent upon the department to prove the same with reliable evidence. It is found from the impugned proceedings that the details of payment received by the appellant were gleaned from the 26 AS statements and other document, like ledger, profit and loss account, balance sheet etc. Thereafter, the appellant was asked to submit the necessary details like work orders, invoices etc. No other investigations to prove that the appellants have rendered taxable service and received remuneration for the same, were conducted. The Department has not even bothered to collect necessary documents from the respective government authorities at whose behest, the appellant is alleged to have under taken the works orders. The nature of such works alleged to have been under taken by the appellants, the taxability thereof under Finance Act, 1994 and exemption if any available was not discussed at all in the impugned order. The Department has not discharged its onus to prove that the appellant is liable to pay service tax. It is settled principle of law that unless and until the clear analysis of the activity done by the assessee is carried out, demand of service tax cannot be confirmed. It has been held in various cases that non adherence to the instructions issued regarding pre-show cause consultation vitiate the proceedings and further reason the impugned show cause notices and order are liable to be set aside - reliance can be placed in the case of AMADEUS INDIA PVT. LTD. VERSUS PRINCIPAL COMMISSIONER, CENTRAL EXCISE, SERVICE TAX AND CENTRAL TAX COMMISSIONERATE [2019 (5) TMI 669 - DELHI HIGH COURT] where it was held that In the present case, the Court is satisfied that it was necessary in terms of para 5.0 of the Master Circular for the Respondent to have engaged with the Petitioner in a pre SCN consultation, particularly, since in the considered view of the Court neither of the exceptions specified in para 5.0 were attracted in the present case. Thus, it is found that the show cause notice was issued in violation of instruction issued by CBIC as observed by the various High Courts the instructions are mandatory in the instant case also the instruction were not complied with. The Departmental instructions are binding on the departmental officers. Therefore, any action taken in violation of the instructions is to be treated as nonest. The impugned show cause notice and the order do not survive - Appeal allowed - decided in favor of appellant.
|