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2023 (7) TMI 54 - CESTAT NEW DELHIRecovery of service tax including the interest and penalty amount - appeal was rejected observing that the plea taken by the appellant is not supported by the documentary evidence - failure to file any reply to the show cause notice - HELD THAT:- It is found from the records of the case, that the appellant has miserably failed to contest the proceedings diligently in as much as he neither submitted the reply to the show cause notice nor attended the personal hearing either before the Adjudicating Authority or the Appellate Authority and have neither submitted the documents in support of pleas taken by him in the appeal before the Commissioner (Appeals). This being the case where the appellant has failed to co-operate with the Department by placing reliance on record the requisite documents, particularly the submissions on which he is relying, an opportunity should be given to him to place such documents before the Adjudicating Authority to consider the case in light thereof particularly for the reason that the period involved was during the Covid time. Accordingly, both the parties have agreed that it would be just and appropriate to remand the matter back to the Adjudicating Authority for denovo consideration. The ld. C.A. has pointed out several decisions of the Tribunal in M/S KUSH CONSTRUCTIONS VERSUS CGST NACIN, ZTI, KANPUR [2019 (5) TMI 1248 - CESTAT ALLAHABAD], CST, SERVICE TAX, DELHI VERSUS CONVERGYS INDIA SERVICE PVT. LTD. [2018 (1) TMI 1174 - CESTAT CHANDIGARH], COMMISSIONER OF C. EX., JAIPUR-I VERSUS TAHAL CONSULTING ENGINEERS LTD. [2017 (1) TMI 657 - CESTAT NEW DELHI] on the merits of the matter that the Revenue cannot compare the figures reflected in ST-3 returns with those reflected in Form 26-AS filed as per the Income Tax Act, 1961 and the Department ought to have examined the reasons for said difference. The principle taken note of was that the Income Tax and Service Tax are two different/ separate and independent special Acts and their provisions operate in two different fields and therefore relying on Form 26-AS / TDS statement, demand of service tax cannot be made. The principle taken note of was that the Income Tax and Service Tax are two different/ separate and independent special Acts and their provisions operate in two different fields and therefore relying on Form 26-AS / TDS statement, demand of service tax cannot be made. The Adjudicating Authority after examining the documents as may be submitted by the parties, needs to take into account the decisions of this Tribunal also while deciding the matter afresh. The appeal is allowed by way of remand.
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