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2024 (3) TMI 14 - CESTAT NEW DELHIShort payment of service tax - difference in the figures found in the Trial Balance as compared to the figures declared in the ST-3 returns - suppression of facts or not - invocation of extended period of limitation - imposition of penalties - HELD THAT:- It is a settled principle of law that service tax can be levied only when there is clear identification of a service provider service recipient and consideration paid for the same. In the absence of any such evidence of the service recipient and the service provided, service tax cannot be demanded and confirmed. For this reason, it is not open for the Department to raise demands on the basis of other statutory returns or balance sheets without proving that such service has been rendered by the appellant and consideration thereof has been received. The Tribunal in a catena of decisions has held that it is well settled law that no demand can be confirmed by comparing the ST -3 returns with balance sheet figures, in the absence of any evidence to the contrary that income in the balance sheet, if excess, reflects the provision of taxable service. As it is the Revenue authorities who have made the allegations of on payment of tax, and as such, the onus to prove the said allegation lies with them to substantiate the allegations. In the case of PRINCIPAL COMMISSIONER CGST & CENTRAL EXCISE, MUMBAI EAST VERSUS M/S. SBI LIFE INSURANCE COMPANY LTD. [2024 (1) TMI 1161 - CESTAT MUMBAI], the Tribunal held that demand/penalty on the basis of difference between ST-3 Returns and Income tax returns of any period, without further examination to establish that the difference is on account consideration received towards discharge of services, cannot be sustained. Thus, mere difference in figures appearing in the trial balance as compared to the ST –3 returns without any corroborative evidence that taxable services had indeed been provided by the appellant cannot be upheld - Further, it is a fact on record that the appellant was filing his ST-3 returns regularly. The Department did not raise any query or seek any clarification from the appellant. Thereafter, merely on the basis of audit observation as per the figures of Trial Balance, the Revenue, cannot, at this stage allege suppression. The impugned order cannot be sustained and is set aside - Appeal allowed.
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