TaxTMI 
TaxTMI 
2020 (5) TMI 344
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.... filed the ST-3 Returns nor paid service tax. The extended period of limitation was also invoked stating that the assessee had not deposited the applicable service tax wilfully and suppressed the facts deliberately with an intention to evade payment of service tax. 3. The Appellant claims to have filed a reply dated 1 July, 2014 to the aforesaid Show Cause Notice, which according to the Appellant was received in the office of the Central Excise, Commissionerate on 2 July, 2014 bearing receipt no. 4624. The Commissioner in the impugned order has, however, observed that the Appellant did not file any reply despite repeated opportunities either upto 15 June, 2014 or upto the date of the order. 4. The Commissioner concluded that the Appellant was liable to pay service tax as a sub-contractor and in regard to the extended period of limitation observed that there was a deliberate act by the Appellant to suppress the taxable value and material facts from the Department with an intent to evade the payment of service tax, which fact came to the notice of the Department only when the inquiry was initiated. 5. Ms. Ashmita Nayak, learned Counsel appearing for the Appellant has submitted tha....
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....for the reason that even a reply to the Show Cause Notice was not filed despite repeated opportunities having been granted to the Appellant. 7. The submissions advanced by the parties have been considered. 8. Before, examining the contentions of the parties regarding invocation of the extended period of limitation, it would be necessary to examine as to whether the Appellant had submitted a reply to the Show Cause Notice. 9. The Show Cause Notice dated 18 April, 2013 requires the Appellant to submit a reply with documents within thirty days of the receipt of the notice. The impugned order mentions that letters dated 15 April, 2014, 30 April, 2014 and 23 May, 2014 were sent to the Appellant to submit replies by 29 April, 2014, 15 May, 2014 and 4 June, 2014 respectively, but no reply was submitted by 15 June, 2014 or till the date the order was passed. According to the Appellant a letter dated 13 May, 2014 was sent seeking extension of time upto 15 June, 2014. Thereafter, another letter 6 June, 2014 was submitted seeking extension time upto 25 June, 2014 and ultimately the reply dated 1 July, 2014 was submitted on 2 July, 2014 as would be clear from the endorsement bearing receipt....
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....rson chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as if, for the words "one year", the words "five years" had been substituted. Explanation.-Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of thirty months or five years, as the case may be. 12. The Show Cause Notice gives the following reasons for invoking the extended period of limitation: a. The assessee failed to discharge its duty and responsibility under the said provision in as much as, it had neither taken registration nor disclosed service tax liability by filing the returns within the prescribed time with the appropriate authority nor deposited the applicable service tax; and b. It appears that the assessee had not deposited the applicable service tax wilfully and suppressed the facts deliberately by not filing the service tax returns within the prescribed time limit with an intent to evade payment of service tax. 13. In reply, the Appellant stated: a. The audit of records of service tax for the period September, 2006 to March, 2010 was conducted by the Internal Audi....
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.... regarding application of extended period of time totally redundant and hence cannot be accepted". Therefore, the proviso to Section 73 (1) is squarely applicable for recovery of service tax in the instant case. (Emphasis supplied) 15. It needs to be noted that prior to the decision of the Larger Bench of the Tribunal on 23 May, 2019 in M/s Melange Developers Private Limited, there were conflicting decisions of the Tribunal regarding liability of a sub-contractor to pay service tax. Such being the position, it cannot be said that the Appellant had suppressed the material facts from the Department with an intent to evade the payment of duty of service tax. This view finds support from the decision of the Supreme Court in Continental Foundation Joint Venture vs. Commissioner of Central Excise 2007(216) ELT 177(SC) wherein it was observed; "11. Factual position goes to show the Revenue relied on the circular dated 23.5.1997 and dated 19.12.1997. The circular dated 6.1.1998 is the one on which appellant places reliance. Undisputedly, CEGAT in Continental Foundation Joint Venture case (supra) was held to be not correct in a subsequent larger Bench judgment. It is, therefore, clear t....