TMI Blog2023 (11) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... t step for Revenue is to establish that a specific amount to be demanded through show cause notice by invoking the said provision is service tax either not paid or short paid or not levied or short levied. Therefore, it is essential to establish that the value on which such service tax is calculated is the value under Section 67 and the same is derived from the consideration received by the appellant out of the activity which has to satisfy definition of service under sub-section (44) of Section 65B of Finance Act, 1994. Such type of examination of the facts and arriving at the prima facie view that the appellant had received the consideration by providing service is missing in the show cause notice. The said show cause notice dated 26.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant on the grounds stated in the subject show cause notice. Aggrieved by the said order, Revenue preferred appeal before Commissioner (Appeals). Learned Commissioner (Appeals) in para 12 of the impugned order has held that in the instant case there was no issue of taxability of service tax, but the issue was regarding difference of Rs.1,97,71,881/- towards income shown in income tax return vs. value shown in ST returns. Learned Commissioner (Appeals) has set aside the order-in-original and allowed the appeal filed by Revenue. Aggrieved by the said order, appellant is before this Tribunal. 2. Learned counsel for the appellant has submitted that the entire demand is based on difference in ST-3 returns and income tax return and that the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the impugned order. 4. We have carefully gone through the record of the case and submissions made. The demand was raised invoking the provisions of sub-section (1) of Section 73 of Finance Act, 1994. The said provision of Finance Act empowers Revenue for recovery of service tax which has not been levied or which has not been paid or which has not been short levied or which has not been short paid or which has been erroneously refunded. Therefore, the first step for Revenue is to establish that a specific amount to be demanded through show cause notice by invoking the said provision is service tax either not paid or short paid or not levied or short levied. Therefore, it is essential to establish that the value on which such service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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