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2024 (2) TMI 1310 - CESTAT NEW DELHIRecovery of service tax with interest and penalty - entitlement to the benefit of the VCES Scheme - onus to prove - no corroborative evidences - appellant did not appear for personal hearing despite several opportunities granted and the duty demand was affirmed ex-parte - HELD THAT:- The appellant had not been actively participating in the proceedings. Before issuing the show cause notice, the Deputy Commissioner, CGST vide letter dated 13.04.2018, had requested the appellant to submit the documents, i.e., IRRs, Balance Sheets, Form 26AS and ST3 returns for the period 2012–13 to 2014–15 for examination of service tax liability on the services provided by them, however, the appellant never responded thereto nor submitted the requisite documents. Even after issuance of the show cause notice, the appellant did not submit any reply and though several opportunities were granted by the adjudicating authority the appellant did not appear and accordingly proceedings were concluded ex-parte. On appeal, the Commissioner (Appeals) remanded the matter to the adjudicating authority with directions to pass a speaking order after considering the submissions of the appellant in true spirit by following the principles of natural justice and the appellant was directed to produce all related documents to the adjudicating authority. Normally, the present appeal needs to be rejected considering the conduct of the appellant in not submitting the required documents at any stage, however with all fairness and in the interest of justice, it is felt that an opportunity to produce all the relevant documents in support of the submissions made, needs to be granted to the appellant. The appellant is once again directed to produce the VCES-2 and VCES-3 as the burden of proof is on the appellant. The appellant may also produce the documents in support of his submissions that he is exempted under the threshold limit of exemption for small scale service providers and that the services rendered by them are classifiable as ‘works contract services’ where discharge of 50% of service tax liability under reverse charge by JVVNL is in consonance with the notification. The adjudicating authority is at liberty to consider all the submissions in the light of the documents to be placed by the appellant and pass a speaking order. The impugned order, is therefore set aside - the appeal is allowed by way of remand.
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