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TMI Blog2022 (7) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... ard Resources Pvt. Ltd. was recorded. Statement of Shri Manoj V. Rajak, Director of Appellant was also recorded. The Investigation revealed that appellant was engaged in providing different services to different clients as detailed in TDS statement and had received the service charges. During the investigation, the Appellant deposited Rs. 50,00,000/- towards their Service tax liability. Investigation also revealed that Appellant have provided taxable service under 'Business Auxiliary Service' , "Advertising Agency Service", 'Market Research Agency Service', 'Management or Business Consultancy Service' and for that they have charged and collected service tax, but failed to deposit the service tax to the government exchequer. Accordingly, show cause notice dated 29-09-2017 was issued proposing the Service tax demand along with interest and penalty. The Additional Commissioner, Surat vide Order-In-Original No. 47/ADJ/ADC-CSM/OA/2017- 18 dated12.04.2018confirmed the demand of service tax along with interest and penalty. Feeling aggrieved, the appellant filed an appeal before the Commissioner (Appeals) who by impugned order -in-appeal dated 09-11- 2018 upheld the order passed by the Add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of various advertising sites such as hoarding, banners and posters across the India, which was under the negative list at the relevant time. The show cause notice wrongly proposes the recovery of the service tax on the above transaction from the Appellant and the impugned order wrongly confirmed the recovery thereof from the Appellant. 3.4 He submits that the impugned order failed to consider that the show cause notice invoked wrong provision of the Finance Act, 1994 to demand Service tax. The demand of Service tax should have been proposed under Section 73A of the Finance Act, 1994 and not under Section 73. Therefore, there can be no demand of Service tax as the impugned order is passed without jurisdiction and hence liable to be quashed and set aside. He placed reliance on the following decisions * Checkmate Industries Services Vs. CCE, Pune -III, 2016 (44) S.T.R. 290 (Tri. -Mumbai) * M/s Fusion India Inc V. CCE & ST., Lucknow- 2018 (11) TMI 358 -CESTAT Allahabad. 3.5 He also submits that the show cause notice proposes to recover service tax amounting to Rs. 1,16,59,641/- under Section 73 of the Finance Act, 1994 which is the provision for recovery of Service tax. However ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to 01.07.2012. However, the entire period of dispute in the present case is falling on or after 01.07.2012. The demand of service tax on the definition based in erstwhile regime cannot be confirmed. The show cause notice has failed to analyse the transactions properly and mechanically raised the demand of Service tax. He placed reliance on the following decisions: * Maharashtra Industrial Development Corporation 2014 (36) STR 1291 (Tri.- Mum) * Frisco Foods Pvt. Ltd. Vs. CCE, Dehradun 2022-VIOL-49-CESTAT-Del- ST 3.9 He further submits that the impugned order relies upon 26AS statements for confirming liability of Service tax. The demand of Service tax cannot be based solely on that basis. He placed reliance on the decisions in M/s Ved Security Vs. CCE, Ranchi-III, 2019(6)TMI 383-CESTAT, Kolkata and M/s Lord Krishna Real Infra Pvt. Ltd. Vs. CCE, Noida 2019(2) TMI 1563- CESTAT Allahabad. 3.10 He also submits that the department has recorded statements of the Directors of the Appellant under applicable provisions of the Finance Act, 1994. Section 9D of Central Excise Act, 1994 provides that a statement made and signed by a person before any Central Excise Officer during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 88) ELT 251 (SC) * Lubri -Chem Industreis Ltd. Vs. CCE 1994 (73) ELT 257 (SC) * Anand Nishikawa Co. Ltd. Vs. CCE 2005 (188) ELT 149 (SC) 4. Shri R.P Parekh, Learned Superintendent (Authorized Representative) appearing on behalf of the revenue reiterates the finding of the impugned order and submits that Appellant have filed fresh and new evidences before the Bench by submitting for the first time which is not permissible 4.1 New grounds and documents may only be admitted according to the procedure prescribed under Rule 23 of CESTAT (Procedure) Rules, which has not been complied with. The additional arguments tendered by the Appellant now have not been first observed by the Adjudicating Authority. The fresh evidences/documents are not allowed in Tribunal. He placed reliance on the following decisions: (i) Kneader House Vs. CCE, Delhi -I 2013 (290) ELT 249 (Tri- Delhi) (ii) Sterlite Industries (I) Ltd. Vs. CCE Tirunelvelli 2017 (357) ELT 161 (Tri- Chennai) 4.2 He argued that for the GTA service rendered the Appellant have only produced Debit Note/ Consignment note. No supporting details was produced. 4.3 He further submits that Section 73 covers the tax not paid or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion arose whether the third member of the Customs, Excise and Gold (Control) Appellate Tribunal to whom the case was referred on difference of opinion between the Bench of two members could permit an additional ground to be raised under Rule 10 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982. The Supreme Court held that the Tribunal has got wide power to hear and consider a new ground and decide the appeal. The relevant observations are as follows : "Rule 10 of the 1982 Rules allows the parties to urge grounds not taken in the appeal provided the Tribunal grants leave to the parties to do so. The Tribunal has also been given a wide power to decide the appeal on grounds not taken in the memorandum of appeal. The only limitation on this power of the Tribunal is that the party affected must be given an opportunity of being heard in respect of the new grounds sought to be urged. According to M/s. Davangere Cotton Mills Ltd., the issue had been raised originally before the Tribunal and again before the third member when it was referred to the third member on a difference of opinion. Revenue had ample opportunity of dealing with the submission. Bes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot find merit in the pleas of the Ld. Departmental representative in this regard. 5.2 We find that in the present matter it is on record that during the search at the premises of the Appellants, no invoices/ debit notes etc., raised to their customers were found. The department in the present matter recovered/called the said alleged debit notes/ invoices from the customers. Further TDS Statement and other financial statement also seized by the department from the business premises of M/s Forward Resources Pvt. Ltd. However, presumption of documents in certain cases under Section 36A of the Central Excise Act is available only when the documents are produced by or seized from the custody or control of the person concerned. For the sake of convenience and ready reference Section 36A of Central Excise Act, 1944 is reproduced below:- Section 36A. - Presumption as to documents in certain cases. - Where any document is produced by any person or has been seized from the custody or control of any person, in either case, under this Act or under any other law and such document is tendered by the prosecution in evidence against him or against him and any other person who is tried jointly w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A to 32P (both inclusive), 33A, 34A, 35EE, 35F, 35FF, to 35-O (both inclusive), 35Q, 35R, 36, 36A, 36B, 37A, 37B, 37C, 37D, 38A and 40." In view of the above section 83 of the Finance Act, 1994 a relevant section 9D is applicable in the case of service tax matters. The department for confirmation of service tax demand also relied on the statement of director of Appellant company and statement of Shri Jagdishchandra Somani, Director of M/s Forward Resources Pvt. Ltd. However, it is settled law that though the admission is extremely important piece of evidence but it cannot be said to be conclusive and it is open to the person whohas made the admission to show that this is incorrect. We also note that there are numerous decisions of the Tribunal laying down that such admission of persons, cannot be considered to be conclusive evidence to establish the guilt of the assessee. Burden of proof is on the Revenue and same is required to be discharged effectively. The details contained in records of service recipient cannot be accepted as admissible piece of evidence. Moreover, none of the persons on whose statements reliance was placed by the department were cross-examined. The Hon'ble P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT, Kolkata wherein it was held that the value of taxable services cannot be arrived at merely on the basis of the TDS statements filed by the clients inasmuch as even if the payments are not made by the client, the expenditure are booked based on which the form 26AS is filed, which cannot be considered as value of taxable services for the purpose of demand of Service tax. 5.5 In the matter of Synergy Audio Visual Workshop Pvt. Ltd. Vs. Commr. of S.T. Bangalore 2008 (10) S.T.R. 578 (Tri. - Bang.), the Tribunal observed as under : "The other ground is for confirming demands is that the appellants had shown certain amounts due from the parties in their Income Tax returns and Revenue has proceeded to demand Service Tax on this amount shown in the Balance Sheet. The appellants have relied on large number of judgments which has settled the issue that amounts shown in the Income Tax returns or Balance Sheet are not liable for Service Tax. In view of these judgments, the appellant succeed on this ground also. The impugned order is set aside and the appeal is allowed." In the matter of Calvin Wooding Consulting Ltd. Vs. Commissioner of C.Ex. Indore 2007 (7) S.T.R. 411 (Tri. - Del.) als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resented the respondent. 5. We find that Commissioner (Appeals) examined the respondents appeal against confirmation of demand and allowed the same mainly on the ground that income-tax return cannot be the basis for demanding Service Tax. Further, the respondent's contention that they have rendered services outside the jurisdiction of Rajasthan and have discharged the Service Tax in Chandigarh and Lucknow, could have been verified with the concerned jurisdictional Chandigarh Commissionerate office. Departmental authority at Jaipur have no jurisdiction to proceed against the respondent for demanding Service Tax without any evidence of taxable service being provided within their jurisdiction. We find that there is nothing in the grounds of appeal which makes us to interfere with the finding of the learned Commissioner (Appeals). The appeal did not advert to any assertion as to how the Service Tax demand can be made when there is no evidence to any taxable service having been rendered in the Jurisdiction of Rajasthan. No inquiries have been conducted by the Revenue to support their case. As such, we find that present appeal is without merit and accordingly, the same is dismissed. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k Ltd. are taxable under "Advertising Agency Service". In the present case Appellant along with affidavit submits the copy of invoices issued to M/s Indusind Bank Ltd.. From the said invoice we observed that the invoices were issued for arranging of various advertising sites such as hoarding, banners and posters across India. The said service are covered under the negative list provided under Section 66D of the Act which reads as under "Selling of space for advertisements in print media" . Hence, we hold that no service tax demand is sustainable on service provided by Appellant to Indusind Bank Ltd. 5.9 As regard the service provided to M/s. Mohan Infosolution Pvt. Ltd. and M/s Windsor Machine Ltd., we find that in submitted affidavit Appellant fairly admitted that they have paid the services tax on the taxable service provided to remaining entities viz., M/s Mohan Info Solutions Pvt. Ltd. and M/s Windsor Machines Ltd. amounting to Rs. 6,55,327/-. We find that when the tax amount stands already deposited before the issuance of show cause notice, Show Cause Notice was not required to be issued under Section 73(3) of Act. Since the tax amount already been deposited by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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