2018 (11) TMI 86 - AT - Service Tax

Tribunal overturns Service Tax demand citing time-barred claim, setting precedent on limitation periods

M/s J.S.P. Constructions Versus Commissioner, Customs, C. Excise & S. Tax, Ghaziabad

The Tribunal allowed the appeal, setting aside the demand of Service Tax and penalties under Section 78 of the Finance Act and Section 76 of the Act. The ... Construction Services - Works Contract Services - suppression of facts or not - extended period of limitation - Held that:- Inasmuch as there is no dispute on the factual position that the present demand stands raised by way of audit conducted for the second time, when no such objection was raised by the first Audit, which was conducted for the prior period in question, the appellant cannot be held guilty of any suppression of facts - longer period of limitation is not available to the Revenue - appeal allowed - decided in favor of appellant. Issues:Demand of Service Tax, Penalty under Section 78 of Finance Act, Penalties under Section 76 of the Act, Time Barred Demand, Applicability of Extended Period of Limitation.Analysis:The appeal challenged the demand of Service Tax amounting to Rs. 10,60,421/- along with penalties under Section 78 of the Finance Act and additional penalties under Section 76 of the Act. The appellant, registered with the Service Tax Department for providing taxable services, faced objections regarding short payment of service tax during an audit in 2002. The appellant settled the objections and received a Settlement Certificate. Subsequently, another audit in 2012 revealed non-payment of service tax on reverse charge basis for GTA Services. The appellant paid the due amount after this audit. However, proceedings were initiated against the appellant for the period 2007-08 to 2011-12, proposing a demand of Rs. 10,60,421. The appellant contested the Show Cause Notice on the grounds of limitation, citing that the audit for the earlier period had already taken place and there was no proposal to pay service tax for freight payments. The Adjudicating Authority rejected the plea and confirmed the demand along with penalties.The appellant argued that the demand was time-barred, referencing various court decisions. The Tribunal cited the case of Trans Engineers India Pvt. Ltd. v/s Commissioner of Central Excise, Pune, where it was held that Revenue authorities cannot invoke extended limitation period if no misstatement or suppression of facts is confirmed after the first audit. Additionally, the Karnataka High Court case of Commissioner of Central Excise, Bangalore-I v/s MTR Foods Limited stated that when all facts are regularly mentioned in returns without any objection from the Revenue, the extended period is not applicable. Another Tribunal decision in the case of M/s SDL Auto Pvt. Ltd. v/s Commissioner of Central Excise, Delhi-IV supported this position.Given that the present demand was raised during the second audit without any issues identified during the first audit, the Tribunal concluded that the appellant cannot be accused of suppressing facts. Therefore, the longer period of limitation was not available to the Revenue. Consequently, the demand was set aside on the grounds of being time-barred, and the appeal was allowed in favor of the appellant.