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2023 (2) TMI 609 - CESTAT CHENNAIValuation - inclusion of the fixed cost component - appellant had only paid the Service Tax on the variable cost which was nothing but the cost received from the advertising agency - case of Revenue is that appellant had excluded the fixed cost collected from the advertising agency, which was nothing but the slot fee payable to the television channels for telecasting the programme and that therefore it was sought to be recovered - extended period of limitation - revenue neutrality. HELD THAT:- Section 73(1) of the Finance Act, 1994 prompts for issuing a Show Cause Notice for the recovery of Service Tax not levied or paid or short-levied or short-paid or erroneously refunded; but however, neither in the Show Cause Notice nor even in the impugned Order-in-Original do we see any allegation as to the Service Tax not levied or not paid or short-levied or short-paid or erroneously refunded. Further, there is also no dispute either in the Show Cause Notice or in the impugned Order-in-Original of the fact that the advertising agency had remitted the Service Tax component to the Government Exchequer. Section 73(1) could be invoked when the conditions prescribed in the proviso thereunder are satisfied - From a perusal of the Show Cause Notice or even the Order-in-Original, it is not found that the concerned authorities have justified the issuance of Show Cause Notice by invoking the extended period of limitation, but for a mere allegation that there was suppression. It is very much the settled position of law that allegations, howsoever strong, cannot take the place of proof. When, therefore, the Government is not deprived of its dues, that is to say, when for a particular service on which the Service Tax was liable to be paid, the same has been paid, it makes no difference as to who has paid the tax. The appellant has claimed that the advertising agency has paid the applicable Service Tax on the impugned service, which has not been disputed either by the advertising agency or even by the Revenue and this is precisely the reason for the Revenue not to urge that the Service Tax was not paid, but for only quoting Section 73(1). It is worthwhile here to note the observations at paragraph 9.3 of the Order-in-Original wherein the Adjudicating Authority himself has acknowledged that the Service Tax having been paid by the advertising agency, the appellant could enjoy the facility of CENVAT Credit. The appellant has to succeed on both the legal grounds and the Revenue has not justified the invoking of the extended period of limitation and also not been able to dislodge that it is the case of revenue neutrality. Appeal allowed.
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