TMI Blog2009 (5) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - and Rs. 60,000/- under various. Sections of the Finance Act, 1994. Aggrieved by this order, the appellant filed an appeal before the Commissioner (Appeals), Cochin. The ld. Commissioner (Appeals) after considering the oral and written submissions made by the appellant before him, came to the conclusion that the impugned order-in-original before him was correct and upheld the same. Aggrieved by such an order, the appellants are before us. 2. The ld. Counsel appearing on behalf of the appellant briefly stated the facts and took us through the OIO and OIA. Ld. Counsel assailed the impugned order mainly on the following grounds:- (a) that the adjudicating authority has erred in passing the O-I-O on 15-9-2004 under the provisions of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner (Appeals) are very clear and in detail. It is her submission that the appellant neither got registered under service tax provision nor paid service tax till the detection of the offence. It is her submission that the appellants themselves had admitted that no accurate accounts in respect of the collection of fees were kept and no other documents other than the receipt books were submitted to the Department. In the absence of any such information, the service tax liability worked out by the adjudicating authority is in accordance with the law. 4. We have considered the submissions made by both the sides and perused the records. 5. First and foremost, we find that the objection raised by the appellant regarding the invocati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a escapement of the service tax. 8. We find that the adjudicating authority in his OIO has recorded the following findings:- "The service provider has stated that their establishment is having an area of 1200 sq. ft. and at a time only 25 persons can be accommodated all inclusive, including trainees from whom no charges are collected. I have got the premises verified by the Superintendent (Preventive), Palakkad-I Division, who has reported back to me that the floor area is 1200 sq. ft. and machines occupy 900 sq. ft. approximately. At a given point of time 16 to 17 persons can do the exercises excluding those doing ground exercise. The total working hours of the health club per day is 11 hrs. 30 minutes. The above verification report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility 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 and considering that only 17 persons can do exercises at a time. 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 there is no denial in this case by the appellant that they were providing the services of "Health club and Fitness Centre". If it is an admitted fact that they are providing the said services, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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