TMI Blog2014 (1) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... is ground alone. Apart from that, Commissioner (Appeals) has given a finding that demand was made only on the amount shown in the invoice and not on the amount realized. It is also noted that Revenue is not in possession of any documentary evidence whatsoever in respect of demand - demand of tax under Section 73(a) of the Act without any notice cannot be sustained - Decided in favour of assessee. - Appeal No.ST/59/2004 - FINAL ORDER No.40641/2013 - Dated:- 12-11-2013 - Shri P.K. Das and Shri Mathew John, JJ. For the Appellant : Shri J. Shankararaman, Advocate For the Respondent : Ms. Indira Sisupal, AC (AR) JUDGEMENT Per P.K. Das; The relevant facts of the case, in brief, are that appellants are providing telephone services to customers. By assessment order dtd. 12.10.2000, the Asst. Commissioner of Central Excise (Service Tax Cell), Chennai-I finalized the assessment relating to the period July 1994 to March 2000 and demanded an amount of Rs.9,63,14,863.71 with interest. The Commissioner (Appeals) set aside the demand notice and remanded the matter to the adjudicating authority for deciding afresh after issuing show cause and affording an opportunity of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was known to them. Therefore, in this case, notice is not required. 4. After considering the submissions of both sides and on perusal of the records, we find that by order dt. 12.10.2000, the Asst. Commissioner of Service Tax finalized the assessment. It is seen that appellant filed 17 numbers of quarterly returns for the period from 1-07-1994 to 30-9-1998 and 3 half yearly returns for the period 01-10-1998 to 31-3-2000 were finally assessed by order dated 12.10.2000 by the Asst. Commissioner of Central Excise under best judgement assessment, under section 72 of the Finance Act 1994. For proper understanding, Section 72 is reproduced as under :- Section 72 - Best Judgement Assessment - if : (a) Any person fails to make the return required by any notice given under sub-section (2) of section 70 and has not made a return or a revised return under sub-section (3) of that section, or (b) Any person having made a return fails to comply with all the terms of a notice issued under sub-section (1) of section 71 ; or (c) the Central Excise Officer is not satisfied with the correctness or the completeness of the accounts of the assessee. The Central Excise Officer, after taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount received/realised by telegraph authority. Therefore, the demand of Service Tax in the assessment order by the lower authority on the amount billed is not correct. The lower authority should have determined the ST only on the amount realised by the appellants in respect of each ST 3 return. 6. The adjudicating authority by de novo adjudication order dt. 12.8.2003 confirmed the demand of differential service tax of Rs.92,77,124.00 with interest for the period August 1994 to March 2000 under Section 73 (a) of the Act 1994. Section 73 (a) reads as under :- Section 73-Value of Taxable services escaping assessment :- 73 (a) -omission or failure to make a return under section 70 for any quarter or to disclose wholly and truly all material facts necessary for assessment serve notice within 5 years from the date of filing the return. (b) - where there has been no omission or failure as mentioned in Clause (a), the Central Excise Officer has reason to believe that the value of any taxable service in any quarter has escaped assessment or has been under-assessed may serve a notice within six months from the date of filing the return and proceed to assess or reassess the value of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... why he should not pay the amounts specified in the notice must be served on him. It is the admitted position in the present case that no such notice was served. It would thus appear that the aforesaid demand notice, dated 7th February, 1984 was in violation of the provisions of Section 11A and is bad in law. Mr. Govind Das, learned counsel for the appellant, however, contended that although the aforesaid section provides that no demand could be made against a person thereunder without affording that person an adequate opportunity to show cause against the same, in the present case, though no prior show cause notice was given and the petitioners were not given an opportunity to be heard before the notice of demand was issued, such a notice was issued and an opportunity to show cause was given after the demand was made and the demand confirmed after hearing and hence it must be regarded as valid. It was submitted by him that a post facto show cause notice should be regarded as adequate in law. In support of this contention Mr. Govind Das tried to place reliance on certain decisions where a view has been taken that in cases where urgent and emergent action is required, an opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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