TMI Blog2010 (11) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... - the evidence gathered by the Department is not sufficient to establish even the preponderance of probability - Decided in the favour of the assessee - ST/112 OF 2010 (SM) - 1449 OF 2010 SM (BR) - Dated:- 25-11-2010 - RAKESH KUMAR, J. ORDER 1. The facts giving rise to this appeal are in brief as under. 1.1 The respondent are engaged in selling of SIM Cards, recharge coupon of M/s Bharti Airtel Limited and also the mobile phones etc. During the course of audit of their records, it was found that on 17-10-2003, a survey team of the Income-tax officers had visited their premises and at that time they had declared unaccounted income of Rs. 4,00,000 (Rupees Four Lakhs), which was found in cash in the business premises. Sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 195/CE/LDH/2009 dated 6-10-2009 set aside the Deputy Commissioner s order and allowed the appeal on the ground that there is no evidence that the unaccounted income declared by the respondent to the Income-tax department was the consideration for the taxable services of business auxiliary services provided by the respondent to their clients and that no inquiry in the nature of recording evidence have been made in this regard with the respondent. The Commissioner (Appeals) in this regard also relied upon the Tribunal s order No. 1147/2008-SM (BR) dated 28-3-2008 in the case of Kipps Education Centre v. CCE [2008] 17 STT 306 (New Delhi - CESTAT) wherein it was held that income voluntarily disclosed before the Income-tax authorities which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT 381 (Trb. - Mum.) and that Commissioner (Appeals) has erred in relying upon the judgment of Tribunal (Final Order No. 1147/2008-SM (BR) dated 28-3-2008) in the case of Kipps Education Centre (supra) Shri Anil Khanna emphasized that recovery of unaccounted money of Rs. 4,00,000 in cash from the business premises of the respondent is a clear evidence that the same is unreported income from their activity of providing textile services to their clients on which no service tax has been paid, as they had taken registration under Business Auxiliary Service only in the year 2005. 2.2 Shri S. Malhotra, Advocate, the learned Counsel for the respondent, pleaded that the business auxiliary services had become taxable with effect from 1-7-2003, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal in the case of CCE v. Ramesh Studio Color Lab [2010] 27 STT 459 (New Delhi - CESTAT) in identical facts has held that service tax demand against the respondent based on the unaccounted income declared by the respondent to the Income-tax authorities, in absence of any evidence that the income declared was attributable to taxable service provided by them to their clients, cannot be treated as turnover on account of a taxable service and charged to service tax, and that in view of this, the impugned order is correct and there is no merit in the revenue s appeal. 3. I have carefully considered the submissions from both the sides and perused the records. 4. The admitted facts are that the respondent sell the mobile phones and be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o whether the respondent turnover during this period was to the tune of Rs. 2,50,00,000. The department relies upon the Hon ble Supreme Court s judgment in the case of D. Bhoormull (supra), wherein it has been held that the Department is not expected to prove its case with mathematical precision and what is required is the establishment of such a decree of probability that a prudent person may believe in existence of the facts in issue. However, in this case, I find that the evidence gathered by the Department is not sufficient to establish even the preponderance of probability. I also find that in the case of Ramesh Studio Color Lab (supra) where similar service tax demand had been made against the respondent in similar circumstances, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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