9911796707
TMI Blog2009 (5) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Finance Act, 1994 as "Health club and Fitness centre". They were providing this service right from the year 2000. This service has been brought under service tax net w.e.f. 16-8-2002. The appellants have neither registered nor paid any service tax till such time the department had initiated proceedings against the appellant. A case was registered against the appellant and show cause notice issued for non-registration and non-payment of service tax. After due process of law the Asst. Commissioner of Central Excise, Palakkad I Division confirmed a demand of Rs. 55,376/- along with interest vide order-in-original No. 139/2004-S.T., dated 15-9-2004. Also, imposed penalties of Rs. 500/- Rs. 10,000/-, Rs. 1000/- and Rs. 60,000/- under vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point of time only 16 to 17 persons can do exercise but the adjudicating authority has held that about 25 persons can do or undertake exercise in the club. The quantification is wrong. (e) Ld. Authorities could not have gone beyond the records seized viz. the details of members and the bill book. (f) The appellants on their own calculated and deposited an amount of Rs. 8450/- which is the correct amount of service tax payable. (g) The demand is not proper and the amount deposited by the appellant have been before the issuance of show cause notice. No penalty provisions are applicable. 3. Lt. Jt. CDR on the other hand would submit that the findings of the adjudicating authority and the ld. Commissioner (Appeals) are very clear and in det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to come forward and justify that the accounts and the bill book kept by them are correct and they have to be considered as an evidence, for collection of the amount. 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. 7. 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. 8. We find that the adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Further Commissioner (Appeals) has given a finding that the appellants themselves have admitted that no accurate accounts in respect of collection of fees were kept and no other documents or account books other than receipt books and receipts submitted to the Department were kept. Ld. Counsel endeavored to draw our attention to the said records and tried to justify the correctness, as to the discharge of service tax by them would not be of any consequences as we are unable to follow the entire records in the absence of cohesiveness of the evidences before us. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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