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2023 (12) TMI 1214 - CESTAT NEW DELHINon/short-payment of service tax - contention of the appellant was that it had neither issued the invoice nor had received the amount mentioned in the notice - principles of natural justice - HELD THAT:- In view of the factual position as to whether the service tax paid by the consortium partner of the appellant was linked with the invoice issued by the consortium partner, it would be in the fitness of things that the adjudicating authority examines this issue and it would be not appropriate to examine this issue in this appeal. Whether the service tax to the extent of Rs. 6,42,177/- has been paid on the excess income of Rs. 51,95,614/- by the service tax recipient, namely, M/s Bihar Urban Infrastructure Development Corporation Ltd.? - HELD THAT:- In view of the nature of controversy that has arisen, it would be appropriate if this issue is also again examined by the adjudicating authority after providing an opportunity to the appellant to submit relevant documents to establish the link between the invoice and the service tax paid by M/s Bihar Urban Infrastructure Development Corporation Ltd. Whether service tax was required to be paid on the amount of Rs. 31,84,835/-, which amount was shown in the books of account as “work-in-progress” by the appellant? - HELD THAT:- The Commissioner (Appeals), after having noted all the submissions, recorded a finding that it was for the appellant to have shown by positive evidence that it had not received the amount as advance and since it could not substantiate this fact, the demand had to be upheld - The Commissioner (Appeals) completely erred in recording this finding. It was for the Department to have established that the appellant had received the payment in that particular year, more particularly when the contention of the appellant was that it had not received any payment and the amount was only shown as “work-in-progress” in the balance sheet. This demand, which has been confirmed by the Commissioner (Appeals), therefore, deserves to be set aside. The present appeal has to be allowed in part.
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