RAM KISHAN BAIRWA vs GHAZIABAD

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD

REGIONAL BENCH - COURT No.II

Service Tax Appeal No.70571 of 2024

(Arising out of Order-in-Original No.29/Comm/ST/GZB/22-23 dated
29/12/2022 passed by Commissioner of Central Excise & Service Tax,
Ghaziabad)

M/s Ram Kishan Bairwa, …..Appellant
(Proprietor of M/s Vishal Associates
D-37, Sector-56, Noida-201301)
VERSUS
Commissioner of Central Excise &
CGST, Ghaziabad ….Respondent
(CGO Complex-II, Kamala Nehru Nagar, Ghaziabad)

PPEARANCE
A :
Shri Brijesh Verma, Advocate &
Ms Prerna Jain, Advocate for the Appellant
Shri Santosh Kumar, Authorised Representative for the Respondent


CORAM:
HON’BLE MR. P.A. AUGUSTIAN, MEMBER (JUDICIAL)
HON’BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL)

FINAL ORDER NO.70316/2026

DATE OF HEARING : 31 July, 2026
DATE OF PRONOUNCEMENT : 01 September, 2026


SANJIV SRIVASTAVA:

This appeal is directed against Order-in-Original
No.29/Comm/ST/GZB/22-23 dated 29/12/2022 passed by
Commissioner of Central Excise & Service Tax, Ghaziabad. By
the impugned order following has been held:-
“ORDER
1. I hereby confirm the demand of service tax amounting
to Rs.2,30,92,994/- (Rupees Two Crore Thirty Lakh
NinetyTwo Thousand Nine Hundred Ninety Four Only)
proposed under SCN, under proviso to Section 73(1) of the
Finance Act, 1994 read with Section 174 (2) of the Central
Goods and Services Tax Act, 2017, and order its recovery
from the party.

Service Tax Appeal No.70571 of 2024
2

2. I order charging and recovery of interest under Section
75 of the Finance Act, 1994 read with Section 174(2) of
the Central Goods and Services Tax Act, 2017, on the
above-mentioned confirmed amount of service tax.
3. I hereby impose a penalty of Rs. 2,30,92,994/- (Rupees
Two Crore Thirty Lakh NinetyTwo Thousand Nine Hundred
Ninety Four Only)upon the party under Section 78 of the
Finance Act, 1994 read with Section 174 (2) of the Central
Goods and Services Tax Act, 2017.
4. I impose penalty of Rs. 10,000/- upon the party under
Section 77(1)(c) of the Finance Act, 1994 read with
Section 174 (2) of the Central Goods and Services Tax Act,
2017.
5. I impose penalty of Rs.10,000/- upon the party under
Section 77(2) of the Finance Act, 1994 read with Section
174 (2) of the Central Goods and Services Tax Act, 2017.
The amounts of service tax, interest and penalty adjudged
above should be paid forthwith by the party.”
2.1 Appellant, having Service Tax Registration
No.AIEPB0927DST001 for providing services falling under the
ambit of the Finance Act, 1994 and rules made there under.
2.2 An information was received from DGARM Cell through the
Assistant Commissioner(A.E.-II), CGST Ghaziabad vide letter
dated 11.10.2021 for the Financial Year 2016-17, there were
differences in the value of sale of services declared in their form
26AS and ST-3 returns as detailed below:-
Perio
d
Total Value
for TDS
Under 194C
Total
Value
for
TDS
Under
1941
A
Total
Value
for
TDS
Under
1941
B
Total
Value
for
TDS
Unde
r
194J
Total
Value
for
TDS
Unde
r
194H
Gross
Value of
Service
provide
d as per
ST-3
returns
Difference
between
Total TDS
and STR
(Value in Rupees)
2016-
17
15,39,53,29
0
-- -- -- -- -- 15,39,53,29
0

2.3 It was observed that against the above amounts so
received as per their 26AS, appellant has not discharge service
tax liability. Appellant vide letter dated 16.10.2021 asked to
clarify and submit their ITRs, 26AS, Balance Sheet,
Reconciliation statement along with supporting documents for

Service Tax Appeal No.70571 of 2024
3

FY. 2016-17 and onwards. However, appellant did not responded
and no documents were submitted. Accordingly, service tax due
from the appellant was calculated as per table below:-
Period Differential Value of
Taxable Services was not
accounted for in the ST-3
returns
Total Applicable
rate of service tax
(include. Cesses)
Total Differential
amount of Service
Tax payable
(Value in Rupees)
2016-
17
15,39,53,290 -- 2,30,92,994/-

2.4 Show cause notice dated 22.10.2021 was issued to the
appellant, asking them to show cause as to why:-
“(i) Service Tax amounting to Rs. 2,30,92,994/- (Incl.
Cesses) (Rupees Two Crore Thirty Lakh Ninety Two
Thousand Nine Hundred Ninety Four Only)so deliberatively
and willfully short paid by them during the period from
April, 2016 to March, 2017 should not be demanded and
recovered from them under proviso to Section 73 (1) of
the Finance Act, 1994readwith Section 142 and Section
174(2) of the CGST Act, 2017;
(ii) Interest, on the above amount of Service Tax, should
not be demanded and recovered from them under the
provisions of Section 75 of the Finance Act, 1994 read with
Section 142 and Section 174 of the CGST Act, 2017;
(iii) Penalty should not be imposed upon them under the
provisions of Section 78 of Finance Act 1994 read with
Section 142 and Section 174 of the CGST Act, 2017;
(iv) Penalty should not be imposed upon them under
Section 77(1)(c) of Finance Act 1994.
(v) Late fee should not be imposed upon them Section 70
of the Finance Act, 1994 read with Rule 7C of Service Tax
Rule, 1994 read with Section 174 of CGST Act 2017 for
non-filing of ST-3 for the F.Y. 2016-17.”
2.5 The said show cause notice was adjudicated as per the
Order-in-Original dated 28.01.2022 referred in para 1 above.
2.6 Aggrieved appellant have filed this appeal.
3.1 We have heard Shri Brijesh Verma & Ms Prerna Jain
learned Counsel appearing for the appellant and Shri Santosh
Kumar learned Authorised Representative appearing for the
revenue.

Service Tax Appeal No.70571 of 2024
4

3.2 Arguing for the appellant learned Counsel submits that-
In the same matter for the same period, show cause notice was
issued to the appellant and the same were dropped by the
Original Adjudicating Authority vide Order-in-Original
No.38/Pr.Commr./ST/NOIDA/21-22 dated 28.01.2022 and
Order-in-Original No.03/Comm/ST/GZB/22-23 dated
27.05.2022. However, it is third show cause notice on the same
ground which has been confirmed with penalties. The reason
adherent, such approach is not disenable, as the same
Commissioner has concluded the proceedings earlier and this
Order-in-Original again is non-est and needs to be set aside.
3.3 Learned Authorized Representative reiterates the findings
recorded in the orders of the lower authorities.
4.1 We have considered the impugned orders along with the
submissions made in appeal and during the course of argument.
4.2 We find that in the present case the demand has been
confirmed against a person having PAN No.AIEPB0927D and
Service Tax Registration No AIEPB0927DST001 by observing as
follows:-
“6.1 I have carefully gone through the records of the case
of M/s Ram Kishan Bairwa C/O SPS Residency, Plot NO.-
18B, Vaibhav Khand, Indrapuram, Ghaziabad, Uttar
Pradesh-201005.
6.2 In the impugned show cause notice I find that the
service tax demand has been proposed on the differential
value between revenue amounts reflected in TDS return
(26AS) and gross value declared by the party in the
Service Tax returns. The details are as under:-
Period Differential Value of
Taxable Services was not
accounted for in the ST-3
returns
Total Applicable
rate of service tax
(include. Cesses)
Total Differential
amount of Service
Tax payable
(Value in Rupees)
2016-
17
15,39,53,290 -- 2,30,92,994/-
6.3 As per TDS Return, total Sales/ Gross Receipts from
services was Rs.15,39,53,290/-during Financial Year 2016-
17 whereas no ST-3 return was filed by the party during
this period. Thus, there is a difference of

Service Tax Appeal No.70571 of 2024
5

Rs.15,39,53,290/- in the value of services declared by the
party to the Income Tax Department.
6.4 The party did not submit reply to the notice and did
not respond to subsequent letters to appear for personal
hearings either. Therefore, I hold that the party has
nothing in their favour to submit to the Department
against the show cause notice No. 27/Comm/
ST/GZB/2021 dated 22.10.2021 as they never turned up
to appear in person or submit any valid sustainable
defense in their favour despite been granted ample
opportunities of personal hearing by the Department. In
these circumstances, there is no other option left but to
decide the case ex-parte on the basis of available facts and
records as discussed herein above.
6.5 I observe that as per data provided by the Income Tax
department the party has not declared their service tax
liability correctly during the financial year 2016-17, though
they were providing taxable services under the purview of
definition of taxable services contained in Section 65 of the
Finance Act, 1994 and thus the party was required to
discharge service tax liabilities on this undeclared amount
of sales/gross receipt of amount against the services
provided by them. The party is liable to pay service tax on
the said services provided by them, in terms of Rule 6 of
the Service Tax Rules, 1994 read with Section 68 of the
Finance Act, 1994. I observe that it has been alleged in the
impugned SCN that the party has not declared services
valued to Rs.15,39,53,290/- during the period 2016-17
and in absence of any defense available for the party
against allegations in the impugned show cause notice the
Service Tax of Rs.2,30,92,994/- is recoverable from the
party under Section 73(1) of the Finance Act, 1994 as
proposed in the impugned SCN and I order to recover the
same from the party. Interest shall also be recoverable
from the party at an appropriate rate under Section 75 of
the Finance Act, 1994.”
4.3 Further, we find that by Order-in-Original dated
28.01.2022 passed by Principal Commissioner, Central Goods &

Service Tax Appeal No.70571 of 2024
6

Services Tax, Noida in respect of the proprietorship concern
having STC No. AIEPB0927DSD003 with PAN No.AIEPB0927D
was considered for the period 2015-16 and 2016-17 as indicated
in table below:-
Financial
Year
Rate of
service tax
DIFFERENCE in VALUE (GROSS
AMOUNTITR/26AS-VALUEin STR)
Service tax
involved (Rs.)
2015-16 14.50% 174986608 2,53,73,058
2016-17 15% 153953290 2,30,92,994
Total 4,84,66,052/-

The Adjudicating Authority has passed the following order:-
“ORDER
I drop the proceedings initiated by the Show Cause Notice
No. 386/Pr. Comm./ST/Div-IV/NOIDA/2021 dated 27-04-
2021 issued vide C.No. 20-CGST/TPI-15-16 &16-
17/VISHAL /R-20/Div-IV/N/220/2021/1714 dated
27.04.2021 against M/s VISHAL ASSOCIATES, D-37, SEC-
56, NOIDA, Uttar Pradesh-201301.”
4.4 We find that by Order-in-Original dated 27.05.2022 again
the proceedings were initiated in respect of the same assessee
having STC No.AIEPB0927DST002 with PAN No.AIEPB0927D and
the demand was dropped by the Commissioner by observing as
follows:-
“6.1 In the impugned show cause notice I find that the
service tax demand has been proposed on the differential
value between revenue amounts reflected in TDS return
(26AS) and gross value declared by the party in the
Service Tax returns. The details are as under;-
Period Differential Value of
Taxable Services was not
accounted for in the ST-3
returns
Total Applicable
rate of service tax
(include. Cesses)
Total Differential
amount of Service
Tax payable
(Value in Rupees)
2016-
17
15,39,53,290 -- 2,30,92,994/-
6.2 I have gone through the case records and reply of the
party. The party has pleaded that they had surrendered
their service tax registration on 04.02.2015 and took a
new registration at Noida where they were regularly paying
the tax and filing the returns.
6.3 I observe that they have submitted copy of a letter dt.
04.02.2015 addressed to the Superintendent, Service Tax,
Div-III, Ghaziabad regarding surrender of the registration

Service Tax Appeal No.70571 of 2024
7

number AIEPB0927DST002 and shifting to Noida. The
instant demand pertains to the period 2016-17 when the
party had ceased to be assessee under this jurisdiction.
6.4 I find that the Order-in Original No. 38/Pr.COMMR/
ST/NOIDA/21-22 dt. 28.01.2022 has been passed by the
Principal Commissioner, CGST Commissionerate, Noida in
case of the party. This order covers the demand for the
period 2015-16 and 2016-17 on account of difference in
value as per ITR/26As vis-à-vis Service Tax return. The
value of difference observed during 2016-17 is the same
as the instant demand mentioned above.
6.5 As the party had already surrendered the registration
and was not falling under the jurisdiction of this
Commissionerate during the relevant period of 2016-17
and this period stands covered in the order dated
28.01.2022 of the Principal Commissioner, CGST
Commissionerate, Noida, I find that the demand is liable to
be dropped and no further action is required at this end.
6.6 In view of the facts and circumstances of the case and
discussion & findings mentioned supra, I pass the following
order:
ORDER
I drop the proceedings initiated against M/s Vishal
Associates, RC-45C, Anil Vihar, Khora Colony, Ghaziabad
vide Show Cause Notice No. 32/Comm/ST/GZB/2021
dated 22.10.2021.”
4.5 From the facts as above we find that the person having
PAN Number AIEPB0927D was having three separate registration
for providing the taxable service as detailed in table below:
Registration No Name Address
AIEPB0927DST001 Ram Kishan
Bairwa
C/o SPS Residency, Plot No -18B,
Vaibhav Khand, Indirapuram Ghaziabad
Uttar Pradesh 201005
AIEPB0927DST002 Vishal
RC-45C, Anil Vihar, Khora Colony,
Ghaziabad Uttar Pradesh 201009
Associates
AIEPB0927DST003 Vishal
D-37, Sec-56 NOIDA, Uttar Pradesh
201301
Associates
Information received from Income Tax authorities in respect of
the PAN was simultaneously processed for all three registered
person and the demands were issued separately to the each of

Service Tax Appeal No.70571 of 2024
8

registered person, attributing the entire value of receipts (Rs
15,39,53,290/-) shown in 26 AS to be total undeclared receipts
in ST-3 return of the each of registrant. It is not understood
how, so many show cause notices were issued to the same PAN
Number in respect of the three registered premises separately.
The demands have been made in all the three cases without
causing any verification even though appellant is registered
person. From the above two orders, it is evident that the same
issue has been considered by the authorities separately,
demands have been dropped in respect of the two, for the same
information received.
4.6 Taking the note of the two orders dropping the demand
raised on the basis of same information, we do not find any
merits in the impugned order confirming the demand. More so
over when we find all the three notices were issued without co-
relating the receipts with any of the activities of the appellant
from the registered premises.
4.7 Impugned order do not have any merits.
5.1 Appeal is allowed.
(Order pronounced in open court on-01 September, 2026)


(P.A. AUGUSTIAN)

MEMBER (JUDICIAL)




(SANJIV SRIVASTAVA)
MEMBER (TECHNICAL)


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