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TMI Blog2019 (6) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... hing services" and are registered with the service tax department. Receiving intelligence that they are not discharging service tax properly on the services rendered by them, a search was conducted by the Service Tax officers at their premises on 18.10.2008. A Panchnama was drawn and several documents such as bill books for the period April, 2008 to September, 2008 and a private notebook containing particulars of fees collected for the period April, 2007 to September, 2008 were recovered. During search, Shri T.V.G.K. Prasada Rao, Director of the assessee firm admitted that they were not properly paying service tax and agreed to pay the differential service tax. The Panchnama drawn during the search was signed by the Superintendent who typed it, two Panch witnesses, the Asst. Commissioner and the Director of the assessee Shri T.V.G.K. Prasada Rao. On the same day, Shri Prasada Rao also submitted a letter to the Asst. Commissioner of Service Tax (Anti Evasion) as follows: 4. Thereafter, on 30.10.2008, he sent another letter requesting the department not to present to the bank the cheques that he gave because they could not arrange the funds. Further, he sent a letter dated 09.03.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority who, by the impugned order, held that there is insufficient evidence of non payment of service tax by the assessee and confirmed the demand of only Rs. 5,17,604/- which was admitted by the assessee along with corresponding penalty under section 78. He also observed that no statement was recorded from the Director under section 14 of the Central Excise Act as made applicable to service tax by section 83 of the Finance Act, 1994. He took note of the submission of the Director alleging that the private notebook was made at the behest of and under coercion from the officers. He differed from the lower authority on the point that retraction from the earlier letter dated 18.10.2008, if any, should have been done at the earliest opportunity and not after one year. He held that when there is no statement under section 14 of the Central Excise Act and hence, the question of retraction also does not arise. 9. Assessee's appeal is only against the imposition of penalty under section 78. Revenue's appeal is against dropping of demand by the first appellate authority on the following grounds: (1) The first appellate authority failed to appreciate that the notebook containing fees col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lies in the face of the law settled by the Hon'ble Supreme Court in the case of CC, Madras Vs D. Bhoormull [1983 (13) ELT 1546 (SC)] wherein it was held that "the law does not require the prosecution to prove the impossible. All that it requires is the establishment of such degree of probability that a prudent man may, on its basis, believe in the existence of the facts in the issue. Thus, legal proof is not necessarily perfect proof often it is nothing more than a prudent man's estimate as to the probabilities of the case." This judgment was followed by other courts in several cases. Learned departmental representative reiterates the above arguments and submits that the first appellate authority has wrongly set aside the demand and the same needs to be confirmed. 10. Countering the submissions, learned counsel for the assessee reiterates the findings of the first appellate authority and submits that the only intervention required in this order is setting aside the penalty imposed upon them. 11. We have considered the arguments on both sides and perused the records. It is not in dispute that the assessee is rendering commercial coaching and training services. It is also not in di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he services which were not included in their ST-3 returns and on which service tax was not paid because of the mistake of their accountant and submitted cheques on the very same day. A few days later they submitted another letter requesting that the cheques may not be presented to the bank because they need time to arrange for the funds. A few weeks later they submitted another letter enclosing copies of their balance sheets and ST-3 returns. In none of these letters is there a whisper of protest or an indication that the contents of the notebook were written under duress or that they did not reflect the value of the taxable services rendered. Almost one year after the incident when the show cause notice was served upon them, in response to the show cause notice and during the personal hearing the assessee took a new stand that the notebook was written under duress. We are not impressed by this argument. It is unnatural for any person who has been pressurized to keep quiet for one year especially when they have submitted also cheques for the differential service tax. Learned counsel for the assessee also argued before us that entries in the notebook are not valid because there are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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