BHARAT ALUMINIUM CO. LTD. Vs. CCE

JUDGEMENT

(1.) THIS appeal is filed by the Revenue against the order -in -appeal dated 30/11/2005 which set aside the order -in -original vide which service tax amount was confirmed and penalty was imposed.

(2.) HEARD the learned DR. The respondents have filed written submissions. The issue involved in this case is regarding service tax liability of the respondents on the services provided by them to various government agencies. The services which are provided by the respondents are of security services. The adjudicating authority has confirmed the demand of Rs. 3,80,096/ - and imposed penalty of Rs. 7,60,192/ - under Section 78 of the Finance Act, 1994 and equivalent amount of penalty under Section 76 of the Finance Act.

(3.) THE respondents produced before the first appellate authority certificates issued by Chartered Accountants vide which the tax liability was reduced from than what was confirmed by the adjudicating authority. The learned Commissioner (Appeals) has held that "the department has failed to bring on record evidence of realisation of the billed amount on which the service tax demand has been confirmed and penalty imposed." By observing this, the Commissioner (Appeals) has reduced the service tax liability. As against this observation the Revenue has filed an appeal in which they have relied upon the certificates issued by MSEB and by the Central Railway Divisional Office to submit that the appellant had suppressed the value of the services provided by them in order to evade the service tax. On perusal of the certificate on which the department relies and as filed along with this appeal it is noticed that all these certificates were given by MSEB and Central Railway in the month of February, 2006. It is to be noticed that the adjudicating order was passed by the adjudicating authority on 24/03/2005 and by the Commissioner (Appeals) on 30/11/2005. Suffice to say, it is well settled law, that an appeal, if any, has to be on the same set of documents which were on record at the time of adjudication. It is not open for the Revenue to prefer appeal on the strength of fresh evidence, which were collected subsequent to the adjudication order and after the first appellate proceedings.