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TMI Blog2025 (3) TMI 1347X X X X Extracts X X X X X X X X Extracts X X X X ..... enquiry relating to evasion of Service Tax. During the investigation, it came to notice of the visiting officers that another company in the name of M/s Yards And Yields Infratech Pvt. Ltd., was also functioning on the same address. Statement of Shri Arun Singh, Authorized Signatory of M/s Lord Krishna Real Infratech Pvt. Ltd., was recorded on the spot and he informed in his statement that Service Tax liability of Rs.67,16,924/- was pending against the Appellant as on 21.11.2014. It was also stated by Shri Arun Singh that the working of company of the Appellant and M/s Lord Krishna Real Infratech Pvt. Ltd., was managed and looked after by Shri Arvind Singh who happened to be director in both the companies. With a view to ascertain correct service tax liability, summons were issued to Shri Arvind Singh and his statement was recorded. He admitted that service tax liability was not discharged by the Appellant properly. He also deposited Rs.27,50,000/- towards pending service tax liability of the Appellant. Thereafter, several summons were issued to Shri Arvind Singh with a view to ascertain final tax liability but he did not turn up. During the course of investigation, it came to not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not paid for the period from April, 2011 to March, 2015. Interest and penalty was also demanded. Appropriation of already deposited tax amounting to Rs.99,95,554/- was proposed. Penalty upon Shri Arvind Singh Director was proposed under Section 78A of the Finance Act, 1994. Penalty under Section 70 was proposed for late or not filing ST-3 returns. 6. The SCN was adjudicated by the Additional Commissioner, Central Excise, Noida vide Order-in-Original dated 19.04.2018 and confirmed the demand along with interest and penalty. Penalty was also imposed upon Shri Arvind Singh, Director of the Appellant. 7. Being aggrieved with the above order, the Appellant filed appeal before the Commissioner(Appeals), Noida who vide the impugned Order-in-Appeal dismissed the appeal of the Appellant and upheld the order-in-original. The present appeal is against the impugned order-in-appeal. 8. On behalf of the Appellant, learned Counsel Shri Abhinav Kalra argued the case and submitted that the impugned SCN was issued by taking the figures from FORM 26AS statement without analyzing the activities of the Appellant. Amount appearing in FORM 26AS statement was considered as taxable amount and service ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enied. The learned Counsel vehemently argued on the issue of limitation. He submitted that in ST-3 returns for the period 2011-12, the taxable value was shown as Rs.3,57,42,163/- whereas as per FORM 26AS, value for the same period was taken as Rs.3,63,51,798/-. He further submitted that suppression was only to the extent of Rs.6,09,625/- and not to the extent of Rs.3,63,61,798/- as alleged in the SCN. He also submitted that the Books of Accounts were audited in May, 2014 and liability of service tax for the period October, 2012 to September, 2013 was known to the Department within normal period, hence extended period was not applicable for that period. In support of his above contention he relied upon the following judgements:- (i) Bajaj Auto Ltd., [2010 (260) E.L.T. 17 (S.C.)]. (ii) Jai Prakash Ind. Ltd., [2002 (146) E.L.T. 481 (S.C.)]. (iii) HMM Ltd., [1995 (76) E.L.T. 497 (S.C.)]. 11. As regards penalty, he submits that once it is established that there is no fraud, collusion, willful misstatement or suppression of facts, invocation of Section 78 is unwarranted. 12. Learned Authorized Representative of the Department Shri Santosh Kumar reiterated the pleadings made in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gally correct. Onus lies on the Department to give specific findings on taxability of action of the assessee. The Department failed to demonstrate the essential elements for service tax liability as:- i. They didn't prove that the Appellant actually rendered taxable services. ii. They didn't identify the specific recipients of these alleged services. iii. They didn't demonstrate that the amounts in question were received as payment for taxable services. iv. Information from other statutory documents like ITR/26AS, though valuable, cannot be the sole basis for service tax demands. Service tax demands require establishing the four elements mentioned above. Shifting burden of proof, The Department cannot solely rely on ITR/26AS discrepancies to shift the burden of proof to the taxpayer. In this context, reference is made to the decision of the Tribunal in the case of United Telecom Ltd., [2011 (22) S.T.R. 57I (Tribunal)] wherein it has been held that no demand can be confirmed unless exact liability is not decided. In the case of Kush Constructions [2019 (24) G.S.T.L. 606 (Tri.-All.)], the Tribunal categorically held as:- "After hearing both the sides duly represented by S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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