Mehsana Urban Co Op Bank Ltd vs C.C.E. & S.T.-Ahmedabad-III

Ramesh Nair, Member (J)

This appeal is directed against Order-in-Appeal No. AHM-EXCUS-003-APP-318-13-14 dated 05.12.2013 passed by the Commissioner (Appeals).

The brief facts of the case are that the appellants are providing the Banking and other financial service, they are also engaged in sale of stamp paper, wherein they earned commission income. The case of the department is that there is difference between consideration shown in the balance sheet and ST-3 return and on such difference according to department the Service Tax was not paid. The appellant at the time of adjudication also given the entire detail re-conciliation and submitted to show that no amount was escaped from payment of Service Tax. However, the Adjudicating Authority has confirmed the demand without showing that the difference arising is related to which head of the service. The adjudication order was upheld by the leaned Commissioner, therefore the present appeal has filed.

Shri Dhval K Shah, learned Counsel appearing on behalf of the appellant submits that unless until there is a correct head shown by the department it is not known that Service Tax demand is against which head, therefore on this ground itself the demand is not sustain. He submits that in the appeal memo random in the account of appeal, they have given the detail of their consideration and re-consideration with regard to the difference arising between the ST-3 return and balance Sheet. According to which this demand did not sustainable. He plea for remand to re-examined the differences raised by the department in the SCN. He further submits that despite the fact that there is demand as alleged by the department, since, the demand was raised only on the difference between the figures appearing balance sheet and ST-3 returns demand cannot be sustained on this ground alone as held in the following judgments:

• Krishna Construction Co. Vs. CCE & ST- Bhavnagar- 2022 (8) TMI 644-(CESTAT-AHMD)

• Shresth Leasing & Finance Ltd Vs. CCE & ST, Surat-I-2022 (1) Centax 64 (Tri.-Ahmd)

Shri Ajay Kumar Samota, learned Superintendent (AR) appearing on behalf of the respondent reiterates the findings of the impugned order.

I have carefully considered the submissions made by both the sides and perused the records. We find that firstly the Adjudicating Authority as well as the Commissioner (Appeals) has not come to conclusion that the difference between the figure of ST-3 return and balance Sheet is against which head of service. It is a settled law that without determining the fact about which service is involved demand prima facie cannot be sustained. However, now the appellant has given the complete detail in their appeal regarding the differences. Therefore, the same needs to be re-verified and re-considered.

Accordingly, we set aside the impugned order and remand the matter to Adjudicating Authority by keeping all the issues open. Appeal is allowed by way of remand to the Adjudicating Authority.