TaxTMI 
TaxTMI 
2021 (9) TMI 58
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...., are that, the appellant was registered under the provisions of Service Tax Laws for providing taxable services under the category of "Security Agency Service". They had also provided other services like that of Manpower Supply, Cleaning Service etc. which at the material time, were not taxable under Service Tax statute. The Officers of the Zonal Unit of DGCEI, Kolkata on 10.06.2005 searched the appellant's office situated at Kolkata and Siliguri simultaneously and seized several records. Subsequent to the search operation, the statements of the proprietor and the employees of the appellant were recorded. A Show Cause Notice dated 27.03.2007 was issued by the Additional Director General of DGCEI, Kolkata Unit to the appellant and its Proprietor proposing demand of Service Tax along with Interest and to impose penalty in respect of Kolkata Office and Siliguri Office separately. By the impugned Order dated 15.09.2008, the Commissioner of Service Tax, Kolkata adjudicated the demand in respect of Kolkata Office and confirmed the demand of Service Tax of Rs. 53,65,724.00 along with interest and imposed penalty on the appellant under Finance Act, 1994 for the period from September 2001 ....
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.... indicating the "Watch and Ward" Service was in respect of checking assistance of the Metro Railways during the material period. 4. The Learned Departmental Representative on behalf of the Revenue reiterates the findings of the Adjudicating authority. It is submitted that the Certificate of the Metro Railways is not sufficient to establish that the appellant have not rendered any Security Agency Service to the Metro Railways. In any event, the said Certificate was issued after passing of the Adjudication Order. It is further submitted that the definition of "Security Agency" is wide and included "Watch & Ward" Service. It is also submitted that the Letter of Acceptance as referred by the Learned Counsel would not show that the appellant rendered "Watch and Ward" Service as Checking Assistance of the tickets of Metro Railways. The appellant suppressed the material facts to the Department and therefore extended period of limitation will be applicable. It is contended that they have charged tax in the invoices in respect of Non- Taxable Services and Section 11D of the Act, 1944 would be applicable. 5. Heard both sides through video conferencing. 6. After hearing both the side....
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....n "Watch and Ward" services provided to Metro Railways and such services are not taxable within the definition of "Security Agency Service". It is also submitted that the balance amount would also apply on the same reasoning because no allegation has been made in the Show CauseNotice dated 27.03.2007 to the effect that they deployed the persons for the security of property or person. 9. For the purpose of proper appreciation of the case, the relevant portion of the findings of the Adjudicating authority in respect of Watch and Ward service provided to Metro Railways are re-produced below :- " The said Noticee No. 1 has argued that they have deployed personnel for "Checking Assistance" or "Watch and Ward" service and the personnel were not for security of "Metro Property" or any person. It is observed that the argument advanced by them is not supported by any evidence or not any solid foundation. This would be evident from the statement of Sri Jaydeb Chandra Sinha, Proprietor recorded on 10.03.2007 (discussed in foregoing para). He has admitted that he made several correspondences with Metro Railway authority for payment of Service Tax. Again the very word "Watch and War....
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....cilitators for directing passengers through Automated Ticket Gate. The definition of Security Agency Service as mentioned above would cover the business of rendering services relating to Security of any property whether moveable or immovable or person. In the present case, on perusal of the records including Certificates of Metro Railways it is clear that Watch and Ward of checking assistance of ticket and to guide the commuters to pass through Automated Gates would not cover within the definition of Security Agency Service. 12. The other aspect of the case is that the Adjudicating authority passed the Order on the basis of assumption and presumption that their function cannot be restricted to checking of the tickets to the passengers only. The Learned Counsel for the appellant referred the following Case Laws :- (a) In the case of Karna Security & Housekeeping Services Vs. C.S.T Ahmedabad 2010 (20) STR 807 (Tri. - Ahmd) and in the case of Canny Detective & Security Services Vs. Commr. Of C.Ex.Ahmd. 2010 (20) STR 695 ( Tri- Ahmd.), the Tribunal observed that when Invoice does not show the details, then some of the receivers of service could have been detected and detail....
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....her submitted that the demand was raised on the basis of bills, contracts and agreements as mentioned in the impugned Show Cause Notice. The Learned Advocate referred various Case Laws in this respect. 15. It has been discussed above that the demand of tax of Rs. 39,70,003.00 on Watch and Ward Service provided to Metro Railways cannot be sustained on merit. It is seen that the appellant contested the demand for balance amount as recorded in the Adjudication Order. So, the finding of the Adjudicating authority cannot be acceptable. It is noted that the demand was raised on the basis of Bills, Contracts and Agreement. The Adjudicating authority invoked the extended period of limitation on the ground that the appellant is a very old Registered Firm of 1992 and have not discharged their service tax liability properly and have suppressed the value of taxable service with intent to evade payment of Service Tax. 16. In the case of DEEK Printers Vs. Commissioner of Central Excise, Ahmedabad 2013 (291) ELT 433 ( Tri.- Ahmd) it has been observed by the Tribunal that the suppression, mis-statement etc. for invocation of extended period of limitation, would be applicable for entire proce....
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....ity properly and therefore the extended period of limitation would be invoked. There is no material available on record to invoke the extended period of limitation. Apart from that, a part of demand is liable to be dropped on merit and therefore the extended period of limitation cannot be invoked for the balance amount. Hence, the balance amount of tax is liable to be set aside on limitation. 18. The Adjudicating authority observed that the appellant in their Bills have collected Service Tax on non-taxable service and such amount collected by them as Service Tax comes under the ambit of Section 11D of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. The appellant submitted that Section 11D of the Act, 1944 has no application in respect of non-taxable service. Section 11D of the Act 1944 as it stood during the relevant period is reproduced below :- "SECTION 11D. Duties of excise collected from the buyer to be deposited with the Central Government - (1) Notwithstanding anything to the contrary contained in any order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder, every perso....