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2023 (11) TMI 473 - AT - Service TaxNon-payment of service tax - difference in ST-3 returns and income tax return - demand raised without examination of the books of accounts or not - invocation of provisions of sub-section (1) of Section 73 of Finance Act, 1994 - HELD THAT:- The said provision of Finance Act empowers Revenue for recovery of service tax which has not been levied or which has not been paid or which has not been short levied or which has not been short paid or which has been erroneously refunded. Therefore, the first step for Revenue is to establish that a specific amount to be demanded through show cause notice by invoking the said provision is service tax either not paid or short paid or not levied or short levied. Therefore, it is essential to establish that the value on which such service tax is calculated is the value under Section 67 and the same is derived from the consideration received by the appellant out of the activity which has to satisfy definition of service under sub-section (44) of Section 65B of Finance Act, 1994. Such type of examination of the facts and arriving at the prima facie view that the appellant had received the consideration by providing service is missing in the show cause notice. The said show cause notice dated 26.06.2020 is not sustainable in law - the impugned order set aside - appeal allowed.
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