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2009 (5) TMI 242 - CESTAT, BANGALORE“Health club and Fitness centre” – SCN issued and adjudication order passed based on best judgment assessment - in the absence of any information coming forth from the appellants as regards exact amount collected by them for the services rendered, the lower authorities have resorted to the next possible way for arriving at the amount of service tax payable by the appellant. We find that the adjudicating authority in his OIO has clearly brought out the lacunae and the mis-match of the amounts collected by the appellant and the bill books shown by them as regards the service charges collected. We find that these particular findings of the adjudicating authority has not been contested by the appellant before the first appellant authority. - Hence, we hold that the calculation of the service tax payable under the provisions of Section 72 seems to be correct as it is understood that there is a escapement of the service tax. - In our considered view, in the absence of any proper records being maintained by the assessee, the service tax liability has to be fastened upon them relying upon the factual reports as regards the persons to whom such services are given. Since there is an escapement of service tax, we find that the service tax liability has to be re-worked out by the lower authorities accordingly based upon the evidences - As regards the submissions made by the ld. Counsel that the show cause notice is invoking the provisions of Section 72 mid which was subsequently repealed by the Finance Act, 2004, we find that provisions were rightly invoked
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