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2023 (6) TMI 542 - CESTAT NEW DELHIBest Judgement Assessment - Faithful discharge of service tax liability for the relevant years or not - proceedings conducted under section 73 of the Finance Act, 1994 - applicability of section 72 of the Finance Act - levy of penalty u/s 78 - HELD THAT:- It is clearly a case where the Department acquired knowledge of the fact that the appellant had collected service tax for the services provided to BALCO when the records of BALCO were examined which indicated that BALCO had taken credit of service tax paid by the service providers. This resulted in seeking information from the appellant, but the appellant did not provide the relevant information sought by the Department as a result of which the Department had to gather information from BALCO. It is on the basis of the information provided by BALCO that the show cause notice was issued to the appellant for initiating proceedings under section 72 of the Finance Act. The appellant not only failed to produce any evidence in reply to the show cause notice, but in this appeal also nothing has been brought on record to substantiate whether the appellant had, in fact, deposited service tax which it had been collected from BALCO. It was incumbent upon the appellant to make available all the relevant documents to the Department even prior to the issuance of the show cause notice but that was not done and even in reply to the show cause notice no evidence had been produced by the appellant which may indicate that the service tax collected by the appellant from BALCO, had been deposited with the Department. The only course open to the Department was to have initiated proceedings under section 72 of the Finance Act and it did - The appellant does not dispute the figures that have been provided by BALCO but what is sought to be contended is that these may include some other services that may have been provided. It may be so, but then it was for the appellant to have conclusively demonstrated before the Department that the service tax collected from BALCO for the services provided to it had actually been deposited by the appellant and was also shown in the ST-3 returns filed by the appellant. Whether service tax liability should have been determined @ 4% and not @ 12% under the composite scheme for the works contract? - HELD THAT:- For invocation of the composite scheme it was incumbent upon the appellant to first demonstrate that the services related to works contract and secondly that the appellant had also opted for the composite scheme. In the absence of these two vital factors, the appellant cannot contend that service tax could have been levied only @ 4% and not @ 12%. This is also what has been observed by the Commissioner in the impugned order and there is no infirmity in this finding recorded by the Commissioner. Levy of penalty under section 78 of the Finance Act - HELD THAT:- It is not possible to accept this contention of the learned counsel appearing for the appellant. Once the best judgment assessment has been carried out under section 72 of the Finance Act, it is section 73 of the Finance Act which provides for recovery of the amount and that is why the levy of interest and penalty are recoverable under section 73 of the Finance Act and not under section 72 of the Finance Act. It is also not possible to accept the contention of the learned counsel that the matter should be remitted to the Commissioner for a fresh determination after providing an opportunity to the appellant. The order passed by the Commissioner is sustained and the appeal is dismissed.
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