TaxTMI 
TaxTMI 
2019 (3) TMI 817
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....ted 01.03.2006 in respect of the erection, commissioning and installation services and simultaneously had also availed the cenvat credit forming a firm opinion that the abatement under the said notification is admissible subject to the condition that no cenvat credit of duty on inputs or capital goods or the cenvat credit of Service tax on the input services used for providing such taxable services should have been taken, that a show cause notice No.2697 dated 22.10.2013 was served upon alleging the short payment of Service Tax of an amount of Rs. 20,87,352/- during the period from 01.04.2008 to 31.03.2012 by wrongly claiming the aforesaid abatement. Accordingly, the recovery thereof alongwith the interest at the appropriate rate and the pr....
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.... was ever brought to the notice of the appellant. It is impressed upon that the previous said audit orders are sufficient to hold that the entire facts were to the notice of the Department way back in the year, 2009 itself. The show cause notice of the year 2013 is therefore barred by time. Due to the said reason no suppression and misrepresentation of facts can be alleged against the appellant. The same is sufficient to set aside the demand as proposed vide the impugned show cause notice except the demand confining only for 6 months which falls under the normal period. 4. With respect to the demand for said 6 months, the order under challenge is alleged as being wrongly made in sheer ignorance of the evidence of record. It is submitted th....
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....o scope of bifurcation thereof, there is no infirmity in the order. Otherwise also the appellant had failed to produce the documentary evidence to prove that they have fulfilled the conditions of the said Notification. Justifying the said order, ld. DR has prayed for the appeal to be dismissed. 6. After hearing both the parties and perusing the entire record, I am of the opinion that the controversy to be adjudicated herein is as to: Whether the appellant has wrongly availed the benefit of Notification No.1/2006 - ST dated 01.03.2006, as is alleged in the show cause notice and confirmed against the appellant in the order under challenge. 7. For the purpose the requisite entry of the said Notification is hereby looked into, which reads as....
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....illed the requirements / conditions stipulated vide Notification No.01/2006 - S.T. dated 01.03.2006. The facts and evidences available on record conclusively prove that the assessee has simultaneously availed Cenvat credit on inputs and paid service tax on abated value of the services in violation of the conditions narrated therein. Accordingly, I hold that the assessee was required to discharge service tax on the normal rate i.e. 12.36% including Cesses) and the benefit of effective rate of service tax is not available to them, therefore, they have short paid service tax amounting to Rs. 20,87,352/- Rs. 20,26,554/-+ Edn. Cess Rs. 40,532/- + She Cess Rs. 20,266/-)for period from 01.04.2008 to 31.03.2012." 10. Now coming to the show cause n....
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....ation. Hence, merely relying upon ST-3Return for holding the non-compliance of the condition, to my opinion was not justified on the part of the adjudicating authority. Specially when there was enormous evidence giving bifurcation for both kind of services (eligible and not eligible for the abatement benefit under the impugned Notification). As a result, I hold that the lack of evidence as has been held a ground for rejecting the appeal is not based on the true facts of the case and is rather against the record. 11. Finally coming to the plea of show cause notice being barred by time, it is observed that apparently there had been two prior audits of the appellant's record. First being in the year 2009, admittedly the appellant had regularl....