Custom, Excise & Service Tax Tribunal
Shree Presstress Concrete Products Pvt ... vs Meerut-I on 8 September, 2025
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD
REGIONAL BENCH - COURT No.II
Service Tax Appeal No.70030 of 2025
(Arising out of Order-in-Appeal No.NOI-EXCUS-002-APP-463-23-24 dated
03/01/2024 passed by Commissioner (Appeals) Central Goods & Services
Tax, Noida)
M/s Shree Presstress Concrete Products Pvt. Ltd.,
....Appellant
(Naya Subhanpur Khekra, Baghpat-250101)
VERSUS
Commissioner of Central Excise &
CGST, Meerut-I ....Respondent
(Mangal Pandey Nagar, Meerut-250004) APPEARANCE:
Request for adjournment, for the Appellant Shri Shri A.K. Choudhary, Authorised Representative for the Respondent CORAM: HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) FINAL ORDER NO.70648/2025 DATE OF HEARING : 08 September, 2025 DATE OF DECISION : 08 September, 2025 SANJIV SRIVASTAVA:
This appeal is directed against Order-in-Appeal No.NOI- EXCUS-002-APP-463-23-24 dated 03/01/2024 passed by Commissioner (Appeals) Central Goods & Services Tax, Noida. By the impugned order following has been held:-
"ORDER In view of the above discussion and findings the appeal no. 228-ST/APPL-MRT/MRT/2022-23 dated 10.02.2023 filed by M/s Shree Presstress Concrete Products Pvt. Ltd. Naya Shubhanpur, Khekra, District Baghpat (U.P.) is dismissed as having no merit. The Order-in-Original No. 108/AC/D- SML/2022-23 dated 12.12.2022 passed by Assistant Service Tax Appeal No.70030 of 2025 2 Commissioner, Central GST Division- Shamli is upheld as just, legal and proper."
2.1 Appellant was registered under service tax regime vide registration No.AKVPM6454BSD001 for providing taxable services.
2.2 As per the information received from Income Tax Department for the financial Year 2014-15, it was observed that appellant had received an amount of Rs.29,27,200/- for providing services to various electricity departments or sections. However, their service tax return shown the amount received as NIL. Thus, revenue was of the view that appellant had short paid service tax as detailed in table below:-
Sales/Gross receipt as per ST-3 Returns 0Total amount credited u/s 194C, 194H, 194J as per 26AS 29,27,200 Value difference in TDS and STR 29,27,200 Service tax due @ 12.36% 3,61,802 2.3 Summons dated 07.12.2020 and 15.12.2020 was issued to the appellant for seeking the information in this regard. Certain information and documents were received vide e-mail dated 11.12.2020 and 21.12.2020.
2.4 A show cause notice dated 30.12.2020 was issued to the appellant asking them to show cause as to why-
(i) The Service Tax amounting to Rs.3,61,802/- (Rs. Three Lakhs Sixty-One thousand Eight hundred Two only) including various cess as applicable should not be demanded and recovered from them under proviso to Section 73(1) of the Act, 1994 read with Section 142, Section 173 and Section 174 of CGST Act, 2017;
(ii) The due interest on the amount of Service Tax mentioned at Sl. No. 9 (i) above should not be demanded and recovered from them under Section 75 of the Finance Act, 1994 read with Section 142, Section 173 and Section 174 of CGST Act, 2017;
(iii) Penalty should not be imposed upon them under Section, 78 of the Finance Act 1994 read with Section 142, Section 173 and Section 174 of CGST Act, 2017 for failure to pay Service Tax Appeal No.70030 of 2025 3 service tax & suppressing the facts and value of taxable service with intent to evade payment of service tax;
(iv) Penalty should not be imposed upon them under Section 77(1)(d) of the Finance Act, 1994 read with Section 142, Section 173 and Section 174 of CGST Act, 2017 for not depositing the short paid/due Service Tax;"
2.5 The said show cause notice was adjudicated as per the Order-in-Original No.108/AC/D-SML/2022-23 dated 12.12.2022, holding as follows:
(i) I confirm the demand of Service Tax amounting to Rs.3,61,802/- (Rs. Three Lakhs Sixty-One thousand Eight hundred Two only) including various cess as applicable against M/s Shree Presstress Concrete Products Pvt Ltd., Naya Subhanpur, Khekra Distt, Baghpat which is recoverable from them under Section 73(1) of the Act, 1994 read with Section 142, Section 173 and Section 174 of CGST Act, 2017.
(ii) I confirm the demand of interest at appropriate rate on the amount of confirmed demand of Rs 3,61,802 under Section 75 of the Finance Act, 1994 read with Section 142, Section 173 and Section 174 of CGST Act, 2017.
(iii) I impose a penalty of Rs.10,000/- (Rs. Ten Thousand only) under Section, 77(1)(d) of the Finance Act 1994 read with Section 142, Section 173 and Section 174 of CGST Act, 2017.
2.6 Aggrieved appellant filed appeal before Commissioner (Appeals) which has been disposed of as per the impugned order referred in para 1 above.
2.7 Aggrieved appellant have filed this appeal.
3.1 Matter was listed for hearing today. Appellant has requested for E-hearing vide their letter dated 08.09.2025. However, on going through the records, I find that the issue to be decided is in very narrow compass and hence I have taken up the matter for consideration after hearing Shri A.K. Choudhary learned Authorized Representative appearing for the revenue.
3.2 Learned Authorised Representative reiterates the findings recorded in the orders of the lower authorities.
Service Tax Appeal No.70030 of 2025 4 4.1 I have considered the impugned orders along with the submissions made in appeal and during the course of argument.
4.2 Impugned order records the findings as follows:-
"8.1 I observe that in the instant case the demand of Service tax has been confirmed by holding that the appellant has submitted that they are the owner of the Trucks through which transportation was being effected but has not submitted any documentary evidence in support of their contentions proving that they are the owner of the Trucks through which the said transportation of the goods was being done.
8.2 1 have carefully considered the averments of the appellant and I observe that the form 26AS of the 'appellant reveals that the appellant has received an amount of Rs.29,27,200/- against the services being provided by them and accordingly such income was being reflected against income u/s 194C of the Income Tax Act. I observe that under the said section 194 C of the Income Tax Act the payment received as contractor i.e. the service provider, is reflected. In such circumstances I observe that the impugned consideration of Rs.29,27,200/- was received by the appellant against the services being provided by them.
8.3 I further observe that the appellant has submitted that the impugned amount relates to the amount received against the Transportation of goods being affected by them. The appellant has also submitted that they are charging the transportation amount in their invoices issued for the clearance of the PCC Poles manufactured by them and that they are not issuing any GRs in respect of such transportation. I find that the averments of the appellant are full of self contradictions. On the one hand they are claiming that they are providing the Transportation services and on the other hand they are making averments that they are not issuing the GRs since they are the owner of the Trucks being used. I find that the appellant has not submitted any credible evidences showing that they are Service Tax Appeal No.70030 of 2025 5 providing the transportation services and that they are the owner of the Trucks being used by them.
8.4 I also find that the appellant has not submitted any credible evidence such as Balance sheet, Income Tax Return, Chartered Accountant's Certificate, Party wise ledger, Contracts signed with the purchasers of their PCC Poles manufactured by them, the contract signed for transportation of the PCC Poles and the Notes to the Balance sheet to prove that they have provided the Transportation service.
8.5 Further-more, I observe that in their ST-3 returns the appellant has shown the value of GTA services as Rs.34,00,432/- in the ST-3 returns filed for the relevant time and against this the impugned amount representing the differential value of services is Rs.29,27,200/-. In this way, I observe that the two amounts do not match.
8.6 In such view I hold that the appellant has failed to adduce any credible evidence to prove their case and has failed to made-up. their case. The arguments being forwarded do not support their case and the appeal has no merit. In contrast the adjudicating authority has issued a well reasoned speaking order which needs no intervention at this end. I find that the appellant has provided services which were neither covered under the negative list of services nor was covered in any of the clauses of the Mega Exemption Notification No.25/2012-Service tax dated 20.06.2012.
As such the same have rightly been held to be amenable to Service tax.
8.7 In such view, I am of the view that without valid documentary evidence exemption benefit cannot be extended to any person or party. I am of the opinion that the burden of proving applicability would be on the appellant to show that his case comes within the parameters of the exemption clause or exemption notification. The law relating to the Burden of Proof and its Service Tax Appeal No.70030 of 2025 6 onus is given under the provisions of the Indian Evidence Act, 1872 in Chapter VII, Part-III.
Under the Indian Law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or ascertaining any fact. In this context reliance is placed on the decision of Hon'ble Supreme Court of India in case of Ultratech Cement Ltd. vs. State of Rajasthan (MANU/SC/0530/2020) wherein it was held that:
"the burden of proving applicability would be on assessee to show that his case comes within the parameters of the exemption clause or exemption notification".
8.8 Similar view has been taken by the Apex court in the case of Commissioner of Central Excise, New Delhi vs. M/S. Hari Chand Shri Gopal & Ors. (2005)8 SCC 164, wherein five Member Bench of the Hon'ble Supreme Court held that:
"22. The law is well settled that a person who claims exemption or concession has to establish that he is entitled to that exemption or concession. A provision providing for an exemption, concession of exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the Statute and the object and purpose to be achieved. If exemption is available on complying with conditions, the conditions have to be complied with".
8.9. I find that in the instant case, the appellant failed to provide any document/evidence which establish the claim of the appellant beyond any doubt that the amount of Rs.29,27,200/- on which the adjudicating authority confirmed the service tax liability of Rs.3,61,802/-, has actually been received against the GTA services on which service tax is not leviable on the appellant, and in absence of any such concrete evidence, I do not find any merit in the submission made by the appellant. Therefore, the Service Tax of Rs.3,61,802/-not paid for the period 2016- 17 is required to be recovered along with interest under Service Tax Appeal No.70030 of 2025 7 section 75 of the Act from them under the proviso to Section 73(1) of the Act by invoking extended period of five years and the adjudication order is proper and justified on this issue."
4.3 Impugned order records following as the ground of appeal:
"3.1 that the appellant is engaged in the manufacture of PCC Poles (which are made of concrete) and is regularly discharging the applicable Central Excise duties as well as Value Added Taxes (VAT) Central Seles Tax (on inter-state supplies) within the State of Utter Pradesh upon the incidence of 'manufacture and `sale' of PCC Poles to its customers, on the taxable value. Further, the Appellant is regularly filing its excise/service tax returns as well as VAT returns. The Appellant is raising excise invoices in terms of the Rule 11 of the Central Excise Rules, 2002. 3.2 that the deposit challan details are being property reflected in the ST-3 returns filed by the Appellant for the period April to September 2014, 3.3 that the impugned order is invalid as the entire proceedings have been initiated without determining classification/category of service.
3.4 that the impugned order passed is non-speaking and violative of principles of natural justice, thus the same is liable to be set aside on this preliminary ground alone. 3.5 that it is settled law that date of Form 26AS cannot be used for determining service tax liability unless there is any evidence shown that it was due to a taxable service. 3.6 that the disputed amount of service tax pertains to the re- imbursement of freight amount which is not leviable to service tax. The Appellant is recovering certain `freight charges' from each of its customers for consigning 'PCC Poles' to various stores/sites of the customers as per size- specification groups (specified in purchase order) through road transport at its own risk to the point of delivery. Consequently, the Appellant is utilizing the `freight charges' recovered towards supply of PCC poles by its own third party transport to different points of delivery. The `freight charges' are determined in terms of the applicable consignment load, Service Tax Appeal No.70030 of 2025 8 purchase orders and estimation of distance for delivery on kilometer basis. In the cases where third party transport operators are engaged, the applicable Service tax liability is also discharged by the Appellant under the reverse charge mechanism under the taxable category of 'Goods Transport Agency services'. Admittedly, the appellant has deposited Service Tax (upon availment of abatement of 75% as applicable for the taxable category of GTA). 3.8 that the amount received by the appellant under Section 194C of the Income Tax Act, 1961 should be treated as cum-tax price. It at all the demand is held sustainable, the demand of service tax has been wrongly confirmed on the gross amount received by the appellant.
3.9 that the appellant has not suppressed any facts and extended period of limitation cannot be invoked. In such a case, the entire demand confirmed vide impugned order is time barred."
4.4 In the present case, the demand has been made against the appellant on the basis of the information received from Income Tax Department. Show cause notice dated 30.12.2020 has been issued for the Financial Year 2014-15 by invoking the extended period of limitation. ST-3 return for the period April, 2014 to September, 2014 would have been filed by 25 th of October, 2014 and by period would have expired on 25 October, 2019. The show cause notice issued in respect of the demand for this period is even beyond five years of limitation.
4.5 In respect of second half of the demand for the period i.e. October, 2-14 to March, 2015, ST-3 return would have been filed by 25th April, 2020. Show cause notice have been issued invoking the extended period of limitation by taking protection under the decision of Hon'ble Supreme Court and amendments made in the law providing that due to the conditions created for COVID-19, the show cause notice could have been issued till 30.12.2020 for which limitation expired on 20 March, 2020. However, still I do not find any ground stated for invoking the extended period of limitation.
4.6 I also find that the show cause notice have been issued without causing investigation in the matter. The demand have Service Tax Appeal No.70030 of 2025 9 been made without specifying the services for which the demand is made for. Appellant has claimed that they have received these amounts for transportation of the goods manufactured by them to the specified places. They were effecting the transportation on their own trucks and were issuing the invoices inclusive of the amount towards transportation of the goods. However, the same has not been taken into account while demanding this demand impugned order records that they had not produced the documents in this regard. I do not find any merits in the said observations made for the reason that appellant had issued invoices in respect of the goods being transported showing the charges towards transportation as they were transporting the goods by themselves in the vehicles owned by them. 4.7 In para 8.5 of the impugned order, I find that impugned order itself records that in the ST-3 returns appellant have shown the value of GTA services as Rs.34,00,432/-in the ST-3 returns as against differential value of services on which service tax has been demanded as of Rs.29,27,200/- without specifying the category of taxable services. Impugned order find this as contradiction. The appellant had clearly stated in their grond of appeals that they were providing the services of transportation of the goods manufactured by them to their premises/ site either by their own means or by taking the service from Good Transport Agents (third party). On the services of GTA, received by them they were paying the service tax on reverse charge basis. On the transportation of the goods undertaken by them in their own trucks they recovered the charges of transportation on the invoices issued by them. There cannot be any contradiction between the two for the reason the amount indicated in the ST-3 return was for payment of service tax on the reverse charge basis in respect of the GTA Service received by them. In the present case the demand has been made and confirmed without specifying the nature of services provide by the appellant just on the basis of the figures indicated in 26AS. In case of Rishu Enterprises [Final Order No. 75177/2024 dated 08.02.2024 in S.Tax Appeal No.75509 of 2022], Kolkata bench has held as follows:
Service Tax Appeal No.70030 of 2025 10
6. We find that it is evident from the facts of the case that the whole of the demand has been raised against the appellant on the basis of Form 26AS issued by the Income Tax Department. It is also evident from the fact that the appellant has also provided the copies of Balance Sheet, Form 26As, Income Tax Return etc. during the investigation itself. Further, the appellant also joined the adjudication proceedings through virtual hearing, but in the show-cause notice, the demand has been raised based only on the basis of Form 26AS issued to them. Therefore, the issue arises whether the demand can be raised on the basis of Form 26AS supplied by the Income Tax Department or not? The said issue has also been examined by this Tribunal in the case of Pijush Sharma (supra), wherein this Tribunal has held as under :
"10. In this case, the appellant has contended that the demand has been raised on the basis of Form- 26AS supplied by the Income Tax department. Although summons were issued to the appellant and the appellant did not join the proceedings, therefore, the demand has been raised on the basis of Form- 26AS. Admittedly, no investigation has been conducted in this case at the end of the appellant by the adjudicating authority. Being the appellant a registered service provider and filing their Service Tax returns, in that circumstances, the demand cannot be raised on the basis of Form-26AS obtained from the Income Tax Department. Further, the adjudication order has been passed ex parte.
11. Moreover, the show cause notice has been issued to the appellant by invoking extended period of limitation and some of the demand pertains to beyond five years and in this case, the demand has to be calculated in terms of Valuation Rules, 2006. The issue in this case is whether the appellant is eligible for the benefit of Notification No.30/2012-ST dated 20.06.2012 or not?
Service Tax Appeal No.70030 of 2025 11
12. In that circumstances, we hold that extended period of limitation is not invocable. Moreover, on the basis of Form-26AS, no demand is sustainable against the appellant."
7. Further, in the case of M/s Lord Krishna Real Infra Private Limited (supra), this Tribunal Tribunal has examined the issue and observed as under :
"We also note that there were no other record of the appellant which were taken into consideration for entertaining a prima-facie view that appellant was required to pay short paid service tax of around Rs.8 crores for the said period than the information that was available in returns in the form 26AS. In this regard we note that this Tribunal had an occasion to examine sustainability of demand raised only on the basis of form 26AS. It was held by this Tribunal in the case of Sharma Fabricators Pvt. Ltd. Vs Commissioner of Central Excise, Allahabad reported at 2017 (5) GSTL 96 (Tri.-All.) as follows:
"3.Heard the ld. Counsel for M/s. Sharma he has basically argued that the said Show Cause Notices were not issued by examining the books of account maintained by M/s. Sharma. The Show Cause Notices were based on the presumptions and third party information. He has argued that even when the payments were not made by the clients but the clients booked the expenditure in their books of account they were required to pay the related tax deducted at source to the exchequer and issue a certificate of TDS and incorporate the same in the return called 26AS filed with the Income Tax Authorities and such information cannot be the basis for arrival of the consideration received by the service provider. He has submitted that both the Show Cause Notices were issued without examining the books of account maintained by M/s. Sharma and were Service Tax Appeal No.70030 of 2025 12 issued on the basis of presumptions about the consideration received by M/s. Sharma. The considerations taken into account for issue of Show Cause Notices was in no way near to the actual consideration received by M/s. Sharma during the relevant period which should be the basis for arriving at the assessable value. He has stated that they had elaborated before the Original Authority various reasons for discrepancies in the figures arrived at presuming the considerations received by M/s. Sharma on the basis of such TDS Certificates and the figures in the returns. He has further relied upon this Tribunal's Final Order in the case of Alpa Management Consultants P. Ltd. v. Commissioner of Service Tax, Bangalore reported in 2007 (6) S.T.R. 181 (Tri. - Bangalore). He submitted that this Tribunal in the said case has held that demands, solely based on the income-tax returns for liability of Service Tax under Finance Act, 1994 is not sustainable. In respect of appeal filed by Revenue ld. counsel for M/s. Sharma has contended that the grounds of appeal are travelling beyond the Show Cause Notice and therefore that is not sustainable. He has further elaborated that cargo handling was brought in as ground by Revenue in the appeal filed by Revenue whereas that issuewas not at all dealt with in the Show Cause Notices dated 20- 4-2009 & 13-10-2009.
4. Heard the ld. DR, who has presented the grounds of appeal in appeal filed by Revenue.
5.Having considered the rival contentions and on perusal of record, we find that in the cases of both the Show Cause Notices dated 20-4- 2009 & 13-10-2009 there is no whisper of examination of books of account maintained by Service Tax Appeal No.70030 of 2025 13 M/s. Sharma to arrive at the value of consideration received by them. Surprisingly the draft audit report was the relied upon document. It may be worth mentioning here that the purpose of audit report is to point out any discrepancy to the notice for examination by the executive and it is the duty of executive to examine the records and examine the objection raised with reference to the records and facts of the case and take a view whether there is a sustainable case for issue of Show Cause Notice. Such vital aspects of framing of charges have been missing in the present case. The charges in the Show Cause Notice have to be on the basis of books of account and records maintained by the assessee and other admissible evidence. The books of account maintained by M/s. Sharma were not looked into for issue of abovestated two Show Cause Notices. Therefore, the transactions recorded in the books of account cannot be held to be contrary to the facts. Therefore, we hold that the said Show Cause Notices are not sustainable. Since the said Show Cause Notices are not sustainable, appeal bearing No. ST/890/2010 filed by M/s. Sharma is allowed and appeal bearing No. ST/949/2010 filed by Revenue is dismissed. Miscellaneous Applications also stand disposed of. Cross Objection also disposed of."
From the record it is very clear that none of the records of appellant were taken into consideration for framing of charges that appellant had short paid service tax to the tune of around Rs.8 crores and the said charges were framed only on the basis of information in the form 26AS. We further note that the audit report as explained by the Chartered Accountant for appellant found that Cenvat credit to Service Tax Appeal No.70030 of 2025 14 the tune of Rs.6,38,024/- was inadmissible to the appellant out of total Cenvat credit of Rs.2,21,35,916/- whereas the learned Original Authority has disallowed the same only on the basis that original documents were not produced before him. We accept the claim by the appellant that original documents were seen by the audit party visited by the appellant and such evidence was not taken into consideration by the Original Authority. The learned Original Authority was required to follow the principles of natural justice and direct the appellant to produce the original documents on the basis of which Cenvat credit was availed by the appellant, in case he had doubt about the availability of original documents with the appellant. The order of Original Authority presuming that the appellant did not have original documents is not sustainable in respect of availment of Cenvat credit. Further, there was no proposal in the said show cause notice to deny said Cenvat credit. Further, we find that on the basis of form 26AS return filed under Income Tax Act without examining any other records of the appellant. Charges of short payment of service tax to the tune of Rs.8 crores were made against the appellant. It was possible for Revenue to know the transactions between other parties & appellant from form 26AS. Revenue could have investigated into the nature of such transactions & should have established that the said transactions were in respect of provision of said service. Then alone the charges of short payment of Service Tax would have sustained. We find that Final Order of this Tribunal in the case of Sharma Fabricators Pvt. Ltd. (supra) is squarely applicable in the present case. We, therefore, hold that Revenue did not discharge its burden to prove short payment of service tax. We also hold that the said show cause notice dated 05.10.2016 is not sustainable."
Service Tax Appeal No.70030 of 2025 15
8. In view of the judicial pronouncement of this Tribunal, we hold that merely on the basis of Form 26AS issued by the Income Tax Department, the demand of Service Tax is not sustainable against the appellant."
4.8 As appellant was during the relevant period paying the service tax and filing ST-3 return, I do not find any merits in the demand made by invoking the extended period of limitation. I also observe that the demand made just by referring the to the receipts under Section 194C as per the 26AS of the appellant without identifying the services provided by the appellant against which these amounts have been received cannot be upheld. 4.9 In view of the above, I do not find any merits in the impugned order.
5.1 Appeal is allowed.
(Dictated and pronounced in open court) (SANJIV SRIVASTAVA) MEMBER (TECHNICAL) Akp