M/s Anjani Kumar Singh vs Addnl. Commissioner (CCO) Of CGST And Central Excise & Anr.

i)

the order dated 21.03.2024 (as contained in Annexure-6) passed by the Respondent No. 1 imposing Service Tax, interest and penalty without consideration of the written submissions, the exemption Notification issued by the Central Government on the gross value of the contract regarding service by way of loading, unloading, packing, storage or warehousing of rice and being contrary to Article 366 (29Ab) read with Entry 54 of List II and also Article 265 of the Constitution of India being wholly illegal and without jurisdiction be set-aside and quashed.

ii) the order dated 21.03.2024 (as contained in Annexure-6) passed by the Respondent No. 1 imposing Service Tax, Interest and Penalty without consideration of the written submissions and the documents filed along therewith run counter to the settled principles of natural justice and fair play in action being wholly illegal and without jurisdiction be quashed?

iii) for granting any other relief (s) to which the petitioner is otherwise found entitled to.

4.5

I have gone through the documents listed above which were submitted during the personal hearing. I find that the notice have submitted copy of letter dated 13.04.2018 & 28.02.2018 issued by the Assistant General Manager, Food Corporation of India, Regional Office, Patna with regard to the contract agreement said to be executed for the F.Y. 2016-17 & 2017-18. I find that no Work Order or Agreement has been submitted by the said Noticee to establish their claim as provider of Service relating to Transportation and Handling of food grain. To establish the relation/connection with the nature of services rendered by the said noticee to the consideration received by them during the relevant period, work order issued by service receiver is required to be co-related with payment certificate, form 26AS and Balance Sheet/Profit & Loss Accounts for the said period but the work order for relevant period were not provided by them. Hence, in absence of work order for relevant period, payment received against taxable services which reflects in their Form 26AS for the relevant period cannot be co-related with the payment regarding rendering of the exempted services as claimed by the Noticee. Hence, I find that the documents provided by the said noticee are not enough/sufficient for granting them the benefit of exemption under claimed notification from payment of Service Tax on the consideration received in lieu of providing taxable services during the aforesaid period. Therefore, I find that they have provided taxable services which neither falls under any of the clauses of Section 66D of the Act, as amended from time to time, nor falls under any of the entries of the Mega Exemption Notification No. 25/2012-ST dated 20.06.2012, as amended. Hence, they contravened the provisions of Section 73(1) of the Finance Act, 1964 in as much as the service tax liability including cesses to be paid on the amount they received as consideration on account of providing taxable services during the relevant period. Further, no bills or invoice wise details have been submitted by the noticee, in absence of the same taxable value has been considered as alleged in the instant Show Cause Notice. Therefore, I hold that there is liability of payment of Service Tax amounting to Rs. 60,88,607/- (Rs. Sixty Lakhs Eighty Eight Thousand Six Hundred and Seven only) as calculated at Table- C above.

4.6

The benefit of exemption/abatement cannot be extended to the noticee in the instant case as the noticee have not submitted all the supporting documents and therefore they have not proved their claim for exemption /abatement thereon. It is legally settled principle that the benefit of any exemption / abatement cannot be extended by the department suo-moto. In order to get the benefit of any exemption/abatement, the noticee/assessee have to prove by submitting supporting documents that they are eligible to the benefit of the exemption/abatement. In absence of documentary evidences supporting the claim of any exemption notification or abatement and their eligibility to the same, no benefit of abatement under any notification can be extended to them. The burden of proving the eligibility to the notification lies on the assessee/party who is claiming exemption. The Constitution Bench of Hon'ble Supreme Court in the case of Commissioner Vs Hari Chand Shri Gopal 2010 (260) E.L.T 3(SC 5 Member) has held that a party claiming exemption has to establish that he is eligible for exemption contained in the notification i.e. the burden of proof is on him. Further, Hon'ble Supreme Court in Mysore Metal Industries Vs Collector of Customs, Bombay 1988 (36) E.L.T 369(SC) observed- "The burden is on the party who claims exemption, to prove the facts that entitled him to exemption."

Recently in the case of Commissioner of Customs(Import) Vs. Dilip Kumar & Company (2018(361) E.L.T. 577(S.C.), the Hon'ble Apex Court has held that burden to prove entitlement of tax exemption in terms of the Notification is on the person claiming such exemption.

E. That as per record of writ application, on 27.04.2022 Respondent No. 1 has issued a Demand-cum- Show Cause notice stating therein that Petitioner have provided taxable services to various clients and which neither falls under any of the entries of the Mega Exemption list nor falls under any of the Mega Exemption notification, in as much as they have provided services in lieu of consideration money but have willfully escaped the assessment of taxable value by resorting to suppression with intent to evade the payment of service tax including Krishi Kalyan Cess and Swatch Bharat Cess total amounting Rs. 60,88,607 /- (Rs. Sixty Lakhs Eighty Eight thousand Six Hundred and Seven only) for the period from 2016-2017 (Oct-March) to 2017-2018 (upto June, 2017) which appears to be recoverable from the petitioner along with interest.