TMI Blog2023 (5) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... value of Rs. 4,69,68,022/-. It is, therefore, clear that the show cause notice which was issued for the period April 01, 2007 to March 31, 2012 does not give any reason as to why the amount would be taxable and, if so, then under which category. What transpires from the show cause notice is that the difference between the amount shown in the balance sheet and the ST-3 returns has been construed to be a taxable amount. This issue regarding vagueness of the show cause notice in similar circumstances was examined by a Division Bench of the Tribunal in M/S HINDUSTAN ZINC LTD. VERSUS COMMISSIONER, CENTRAL EXCISE, UDAIPUR [ 2021 (9) TMI 859 - CESTAT NEW DELHI ] where it was held that Neither is there any allegation in the two show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed April 02, 20213 was issued to the appellant proposing a demand of Rs. 54,49,215/-. The period of dispute in the present appeal is from April 01, 2007 to March 31, 2012. It transpires from the show cause notice that the Department came to know that M/s BALCO, Korba had taken credit of the service tax paid and, therefore, investigation was initiated against the appellant to ascertain whether it had actually paid the service tax. It is on a perusal of the balance sheet of the appellant and the ST-3 returns filed by the appellant that the show cause notice alleges : 8.4 The Noticee have submitted copies of ST-3 returns for the period 2007-08 to 2011-12, Balance Sheet for the period 2007-08 to 2011-12. The Noticee have not deposed that w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able value) amounting to Rs. 10,34,19,681/- during the period from April' 2007 to March' 2012. As there is difference in the amounts, hence the higher side amount received by Noticee on account of rendering of various services, is taken into consideration for determination of Service Tax liability for the period 2007-08 to 2011-12. 8.6 Accordingly, the taxable value and Service Tax liability is proposed to be determined under Section 72 ibid for the year 2007-08 to 2011-12. 8.7 Annexure-10 to this Show Cause Notice has been prepared showing the taxable value and Service Tax liabilities thereon. 8.8 Thus, the Noticee are liable to pay total Service Tax amounting to Rs. 54,49,215/- [Service Tax Rs. 52,90,500/-, Educat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a difference between the receipts in the profit loss account of the appellant and the taxable value declared in the ST-3 returns without even identifying the service and the taxable category. Learned counsel also made submissions on merits and also contended that the extended period could not have been invoked in the facts and circumstances of the case. 5. Shri Ravi Kapoor, learned authorized representative appearing for the Department, however, supported the impugned order. 6. To examine the contention advanced by the appellant, it is necessary to examine the show cause notice dated April 02, 2013. Paragraph 8.4 of the show cause notice, which has been reproduced above, mentions that the ST-3 returns and the balance sheet of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded in the impugned order to demonstrate how the provisions of 66 read with 66A of the Finance Act and the Import Rules are attracted. In fact, neither the show cause notices nor the impugned order specify the category of service under which the demand has been confirmed against the Appellant. The demand has been proposed and confirmed merely because of difference between the figures in the balance sheet of the Appellant and the ST-3 Returns. [emphasis supplied] 8. After placing reliance upon the decisions of the Tribunal in Shubham Electricals vs Commissioner of Central Excise Service Tax, Rohtak 2015 (40) STR 1034 (Tri.-Del) ; M/s Deltax Enterprises vs Commissioner of Central Excise, Delhi-I 2018-TIOL-636-CESTAT-DEL ; and N R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gory of taxable service and thereafter can be subjected to tax at the hands of the appellant on reverse charge basis. We find considerable force in appellant-assesse s plea with reference to presumptive nature of the demand for service tax attributable to expenditure in foreign currency. In fact, the nature of services received by the appellant-assesses with supporting evidence has not been analyzed at all. In such situation, the finding recorded by the impugned order suffers from serious legal infirmity. 16. The confirmation of demand on the basis of such a vague show cause notice cannot, therefore, be sustained. [emphasis supplied] 9. As noted above, in the present appeal also, the demand has been proposed in the show c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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