TMI Blog2020 (1) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... de the relevant evidence despite demand from the department. HELD THAT:- The burden was on the Revenue to prove the alleged shortcoming after the records of Appellant along with their C.A. certificate was already produced before the adjudicating authority. In the given circumstances, neglecting those evidences and without referring to any other evidence proving short payment on part of Appellant, confirmation of demand is not sustainable. The same is to be set aside. There is also a plea that a show cause notice dated 20.10.2008 cannot be referred to as the previous show cause notice for proposing the demand in impugned four show cause notices, appellants had submitted that no elaborate basis of charge was given in any of the subsequent show cause notices except making a reference to the previous show cause notice of 20.10.2008 - HELD THAT:- No scrutiny of record was done nor any document was examined. The demand is alleged to have been mechanically raised by simply ascertaining that the difference between the tax payable on balance sheet figures of income/expenditure and the tax paid as per ST-3 Returns is alleged to have been evaded that too by suppression of facts. Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble services. The department observed that service tax was payable on various income also under reverse charge on expenses in foreign currency such as commission on sales etc. Alleging the non-payment of service tax with respect to the services vide separate show cause notices following demands have been proposed to be recovered from the Appellant along with the interest at appropriate rate and the proportionate penalties. Sr. No. Ist SCN dated 29.09.2010 2nd SCN dated 17.10.2011 3rd SCN dated 20.12.2012 4th SCN dated 25.04.2014 1. Lease rent income (under Renting of Immov Property service) 0 0 84699 148641 2. R D Income (under Scientific technical consultancy service) 96389 0 0 37005603 3. Commission on sale (under Business Auxiliary Service) 811307 10703 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. Training Development Expenses (under Commercial Coaching Training Service) 0 379177 11277 7196 16. TOTAL 2095358 3398859 9891343 47505308 The show cause notice of 29.09.2010 was earlier assailed before this Tribunal. Vide final order No. 55142/2017, this Tribunal had remanded the matter back to the adjudicating authority for denovo adjudication. It is thereafter that the aforesaid order under challenge was passed not only with respect to the show cause notice of the year 2010 but with respect to the subsequent three show cause notices as well. 3. We have heard Shri T.R. Rustagi, learned Advocate for the Appellant and Shri Vivek Pandey, learned DR for the Department. It is submitted on behalf of the Appellant that : (1) There is no classification of the taxable services given in the later 4 SCNs. (2) The later 4 SCNs are entirely based on balance-sheet figures without any investigation being conducted. (3) There are case laws whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the appeal of the department is prayed to be allowed. 6. After hearing the rival contentions of the parties and perusing the entire record, we foremost deem it necessary to reproduce the necessary legal provisions about the services involved herein. The same reads as follows: S65(105) taxable service means any 1[service provided or to be provided],- 1. Renting of Immovable Property service : (zzzz)5[to any person, by any other person, by renting of immovable property to any other service in relation to such renting for use in the course of or, for furtherance of business commerce.] 2. Scientific technical consultancy service: (za) to a client, by a scientist or technocrat or any science or technology institution or organisation, in relation to scientific or technical consultancy; 3. Business Auxiliary Service : (zzb) to a client, by8[any person] in relation to business auxiliary service; 4. Scientific technical consultancy service: (zzh) to any person, by a technical testing and analysis agency, in relation to technical testing and analysis; 5. Business consultancy service : (r) [to any person] by a management or busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce available on record to falsify the said certificate. Thus the findings that there is no other evidence than balance sheets which reflect the alleged short payment on part of the Appellant is opined to be a decision contrary to the law as has already been settled that there is no proposition of law for balance sheet to prevail in case of conflict between balance sheet prepared by a professional Chartered Accountant and RT-12 Returns. The Hon'ble High Court at Patna in the case of Commissioner Central Excise, Patna Vs. Universal Polyethylene reported as 2011 (270) ELT 168 has held that in case of such conflict facts and circumstances of the case are to be considered. Since both are the pieces of evidence thus which deserve acceptance is to be decided on the basis of further evidence available. The SLP against this judgement of High Court was dismissed by Hon ble Supreme Court in CCE, Patna Vs. Universal Polythylene reported as 2016 (342) ELT A226 Recent Tribunal Mumbai in Kamboj Ispat P. Ltd. Shri Chatar Singh Vs. Commissioner of Central Excise, Mumbai-2016(1) TMI 560-CESTAT Mumbai, it was held that show cause notice based only on balance sheet figures is not sustainab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where issue remains same, came only in the year 2012. The same cannot be made applicable retrospectively. Thus, we are of the opinion that each show cause notice had to be self contained, including all the details and basis for arriving at the allegation of short/non-payment of service as already observed above. Thus two of the SCNs are out of the scope of this provision. SCN of 2014 could rely upon the contents of the SCN of the year 2012 but later also a no detail except reliance upon SCN of 2008 which is not permissible for the reason stated above. Resultantly, all four SCNs here are silent providing any basis to proceed against the appellant. 13. Otherwise also legal provisions for charging service tax on export of services cited in the previous SCN of 20.10.2008 have no relevance for subsequent period for the reasons elaborated below : (i) Export of service was determined by the Export of Service Rules, 2005, effective from 15.03.2005. They were amended more than once. (ii) Subsequently, there were replaced by the Place of Provision of Services Rules, 2012, effective from 01.07.2012 that determined when a service can be said to be imported or exported. (iii) Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the adjudicating authority was directed to verify the payment particulars need by the Appellant. 16. The order under challenge is the outcome of the said remand not only for the show cause notice under adjudication in the said order but to the subsequent three show cause notices. As already observed above these subsequent show cause notices have no specific allegation for the period therein. We are, therefore, of the opinion that the order under challenge has actually not complied with the directions of said verification s. Lack of evidence in the given circumstances is held to be erroneous ground to confirm the demand as the evidence to be verified has been observed to be already available on record. Thus seen from the above discussion, the order confirming the demand as proposed by four separate show cause notices is erroneous is rather contrary to the settled case law and the evidence on the record. 17. Coming to the scope of appeal filed by the department, it is observed that the challenge in the said appeal is very narrow confining to the quantum of penalty imposed under Section 76. It is observed that the order-under-challenge has imposed the following penalties: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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