TaxTMI 
TaxTMI 
2017 (4) TMI 994
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....tered with the Service Tax Department for providing Cleaning and Manpower Recruitment services. They were issued a show cause notice alleging the short payment of service tax on two grounds. Firstly, that they had wrongly availed the abatement under notification No.12/2003. Secondly, that they had not included the TDS component in the taxable value of the service. After adjudication, the original authority confirmed the payment of Rs. 17,87,604/- under the first count and Rs. 2,33,546/- under the second count alongwith interest and imposed penalty. In appeal, the Commissioner (Appeals) set aside the demand both on merits as well as on limitation. Hence, the department is now before the Tribunal. 3. On behalf of the department, Ld. AR, Sh....
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....with proof of payment of VAT on the subject goods. That when materials/goods are used for cleaning there is no sale and therefore, the Commissioner (Appeals) has erred in holding that respondents are eligible for abatement under notification No.12/2003. The second allegation is that value of taxable services was reflected in the returns deducting the TDS amount. 5. Against this, the Ld. Consultant appearing for respondent Shri Ch. Nageswara Rao submitted that respondent has a strong case on limitation. The department had conducted an audit on 22.05.2008 to 25.05.2008 for the period 6/2005 to 3/2008. Though during this period, respondent had availed the abatement in terms of notification No.12/2003, the department did not raise any object....
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.... department invoking the extended period of limitation alleging suppression of facts. That respondents have not suppressed any facts. There is no evidence to establish that the respondent has suppressed facts. The demand raised in the show cause notice has been taken from the records maintained by the appellant. Further, as and when the audit raised objections, the respondent had discharged the service tax short paid immediately alongwith interest. This would establish the fact that the respondent had no intention to evade payment of service tax. The abatement in terms of notification No.12/2003 was availed on the bonafide belief that respondent is eligible for the said abatement. Further, as pointed out by the audit party in the first audi....
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.... of Chemfab Alkalies Ltd. Vs. CCE, Pondicherry [2010(251) ELT 264 (Tri.-Chennai)] and therefore distinguishable. In the case before me, it is not a mere visit by audit party. There were three audits conducted for the periods covered in the show cause notice. Further, as and when irregularities/objections were pointed out by the audit party, the respondents have immediately complied with the objections and paid the service tax pointed out in the audit report. The defence put forward by respondent in the reply to Show Cause Notice in this regard is worth reproducing as under: SL. NO. NAME OF THE AUDIT OFFICER/SUPDT. DATES ON WHICH AUDIT CONDUCTED PERIOD OF AUDIT COVERED AUDIT OBJECTIONS RAISED DEMAND RAISED REMARKS &nb....
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....tion have been audited by the audit party, therefore, the above factual position and its nature the activity of the service provider is not covered within the scope of proviso to Section 73(1) of the Finance Act, 1994. In this connection the service provider relied on the following case laws: (i) M/s JUBILLANT LIFE SCIENCES LTD Vs. COMMISSIONER OF CENTRAL EXCISE, NOIDA reported - 2013(29)S.T.R. 529 (Tri-Del) Wherein the Hon'ble Tribunal Principal Bench, New Delhi vide Final Order Nos.ST/A/631-632/2012-Cus(PB), dated 05.10.2012 allowed the appeal filed by the Appellant and appeal filed by the revenue is rejected wherein it was opined that: Demand of Service Tax - Limitation - When the entire matter was placed before the jurisd....
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....y contended by the appellant. The date of issue of audit notes is clearly not 28.03.2008 as it cannot be issued prior to the audit itself, which occurred in May 2008 and is presumably issued on 12.06.2008 as observed from the signature. Since the factual matrix on the valuation of cleaning services remained unaltered between the visits by audit teams as detailed at Para 7 & 8 of the impugned order, the Chemfab Alkalies ruling is also not applicable. Furthermore, since the period 2007-08 was covered in the first audit, when the corresponding transactions of that year were considered; the method of valuation approved with the objection limited to disputing the divergence between the material value as per accounting ledger vis-a-vis that decla....