Case Law Details
Aniksha Productions Private Limited Vs Commissioner of Service Tax (CESTAT Chennai)
Section 73(1) of the Finance Act, 1994 prompts for issuing a Show Cause Notice for the recovery of Service Tax not levied or paid or short-levied or short-paid or erroneously refunded; but however, neither in the Show Cause Notice nor even in the impugned Order-in-Original do we see any allegation as to the Service Tax not levied or not paid or short-levied or short-paid or erroneously refunded. Further, there is also no dispute either in the Show Cause Notice or in the impugned Order-in-Original of the fact that the advertising agency had remitted the Service Tax component to the Government Exchequer. Section 73(1) could be invoked when the conditions prescribed in the proviso thereunder are satisfied. From the allegations in the Show Cause Notice and the discussions in the Order-in-Original, we fail to understand that when the Service Tax on the service involved stands remitted by the advertising agency, where is the question of fraud or collusion or even suppression. Therefore, invoking the provisions of Section 73(1), which is not automatic, needs to be justified in the first place by the Revenue. From a perusal of the Show Cause Notice or even the Order-in-Original, we do not find that the concerned authorities have justified the issuance of Show Cause Notice by invoking the extended period of limitation, but for a mere allegation that there was suppression. It is very much the settled position of law that allegations, howsoever strong, cannot take the place of proof.
FULL TEXT OF THE CESTAT CHENNAI ORDER
This appeal is filed by the assessee against the Order-in-Original No. 19/2010-S.Tax/Ch.IV dated 24.11.2010 passed by the Commissioner of Central Excise and Service Tax, Chennai.
2. Heard Smt. Radhika Chandrasekhar, Learned Advocate for the appellant and Shri M. Ambe, Learned Deputy Commissioner for the Revenue. After hearing both sides, the only issue that is to be decided by us is: whether the Revenue is correct in demanding Service Tax from the appellant on the fixed cost component as well?
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