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TMI Blog2025 (2) TMI 1059X X X X Extracts X X X X X X X X Extracts X X X X ..... rm 26AS as value for rendering service, appellant was called upon to show cause as to why service tax amounting to Rs.2,71,17,547/- should not be demanded from him under proviso to sub-section (1) of Section 73 of Finance Act, 1994. The said show cause notice was issued by invoking extended period of limitation. Appellant submitted his defence reply to the said show cause notice through his letter dated 22.03.2022. Appellant submitted that the he had executed work orders awarded by different Municipal Corporations for installation of street lights in municipal area and that street lighting is one of the functions entrusted to municipalities by Article 243W of the Constitution of India. He further stated that under Entry No. 12A of mega exemption Notification No. 25/2012-ST dated 20.06.2012, services rendered to a local government are exempt from levy of service tax. Further, he has stated that for the goods sold to municipalities, VAT was paid and returns were filed. In view of the said submissions, he requested to set aside the show cause notice. Original authority adjudicated the said show cause notice through impugned order- in-original wherein the original authority did not app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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. We, therefore, hold that the said show cause notice dated 26.06.2020 is not sustainable in law." Further, this Tribunal in para 19 of its decision in the case of Maa Kalika Transport Pvt. Ltd. (supra) has held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra 5.7 and 5.8 of final order of this Tribunal in the case of Reynolds Petro Chem Ltd. (supra) : - "5.7 We also find that in the present matter for confirmation of service tax demand revenue also relied upon the TDS /26AS Statement. The said statement under provisions of Income Tax Act, 1961 is an Annual Consolidated tax statement. Income tax and service tax are two different/ separate and independent special Act and their provisions operate in two different fields. Therefore by relying the 26AS /TDS Statement under the Service Tax Act, demand of service tax cannot be made. We also find the support from the decision of M/s Ved Security Vs. CCE, Rachi -III 2019(6) TMI 383 CESTAT, 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. 5.8 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 Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority 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. In the matter of Calvin Wooding Consulting Ltd. Vs. Commissioner of C.Ex. Indore 2007 (7) S.T.R. 411 (Tri. - Del.) also Tribunal observed as under : 21. The liability of the recipient cannot arise merely from the fact that, the income-tax was deducted at source, which was the requirement of the Income-tax Act, on the recipient who made payment to the foreign supplier. Such a statutory requirement, as exists under the Income-tax law on the person making the payment to deduct tax at source, as a tax collecting agency ..... X X X X Extracts X X X X X X X X Extracts X X X X
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