Hemambika R. Priya DECISION
Hemambika R. Priya, Member (T)
1. The present appeal has been filed by the appellant against the Order in Original No. RPR/EXCUS/000/COM (Audit)/5/2023 dated 11.01.2023 passed by Commissioner (Audit) of Central Goods, Service tax and Central Excise, Raipur.
2. The brief facts of the case are that in the course of an audit by the Audit Commissionerate, Raipur, the figures of ST-3 Returns filed during the period April 2015 to June 2017 was compared with balance of specific ledger accounts appearing in the Trial Balances for the period April 2015 to June 2017.
2.1. Based on such differential figures appearing in the Trial Balance and ST-3 returns, the Revenue authorities held that the difference in the two set of figures represent the value of taxable services on which due service tax had not been paid. A very high-pitched demand of Rs. 12,90,84,396/-was proposed in the Show Cause Notice dated 30.12.2020.
2.2. In the course of the adjudication proceedings, the appellant submitted the reconciliation statement and pleaded that the demand has been proposed without examination of the nature of the entries as appearing in the Ledger accounts by deeming all the entries appearing in such ledger accounts are against taxable services rendered based on assumption and presumption despite the fact that an audit has been carried out. It was further pleaded that the burden of proof was on the Revenue as it has alleged short payment of service tax. Furthermore, no reasons have been stated as to why the differential figures represent the value of taxable services on which the appellant has not paid service tax.
2.3. The Adjudicating Authority remanded the matter for further verification to the Range Office and thereafter confirmed the demand of Rs. 9,23,294/- plus applicable interest and equivalent penalty under Section 78 of the Finance Act 1994.
3. Learned Counsel appearing on behalf of the appellant submitted that the demand proposed in Show cause notice solely on figures as appearing in Trial Balance and ST-3 returns is not sustainable. The entire demand proposed in the SCN is based purely on the difference in value of ledger accounts as appearing in the books of accounts and the corresponding figures as reported in ST-3 Returns for the period in dispute, without examining the nature of the entries in the ledgeraccounts and without examining whether such amounts are for "taxable services" received /rendered. Consequently, the burden of proof lies on the Revenue as the allegations of short payment/non-payment of service tax has been made without stating the reasons as to how the differential figures represent "taxable services".
3.1. He further submitted that the difference in the figures as reported in the Ledger Accounts and those as appearing in the ST-3 returns are inherent, and was well within the knowledge of the Department, as for the period, prior to the period in dispute, no demand was ever raised on such differential figures. In this connection, he relied upon the following judgements:-
• Go Bindas Entertainment Pvt. Ltd. Vs. Commissioner of S.T., Noida, MANU/CN/0096/2019 : 2019 (27) GSTL 397 (Tri-All.),
• M/s. Kush Constructions vs. CGST Nachin, ZTI, Kanpur, MANU/CN/0045/2019 : 2019-TIOL-1757-CESTAT-ALL
3.2. Further, for the period April 2017 to June 2017, the appellant had paid excess tax on the differential value of 22,65,618/- (Works Contract Service, Service tax Rs. 3,39,843/-) and further excess tax on the differential value of Rs. 14,666/- (Rent-a-cab service, Service Tax Rs. 2200) whereas it has short paid tax on the differential value of Rs. 32,89,508/- (Renting of Immovable Property Service, Service Tax Rs. 4,93,426/-). Therefore, in any case, the appellant........