AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2022 (4) TMI 302
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....al institutes. On 04.04.2014, the Range Superintendent, Lucknow ask the applicant to submit the information including balance sheet for the period 2009-2010 to 2013-2014. The appellant submitted records except the balance sheet for the period 2013- 2014 as it was not readily available at that time. Thereafter, on 15.09.2014, the appellant appeared before the Superintendent and submitted all relevant information including the balance sheet for the period 2013-2014. On 30.09.2014, a show cause notice was issued to the appellant to demand service tax for the period April 2009 to March 2013 by invoking extended period of limitation. On 29.01.2016, the show cause notice was adjudicated and confirming the demand of service tax alongwith interest and penalties were also imposed on both the appellants. Thereafter, on 01.02.2016 in response to an enquiry for the recurring period, the appellant submitted the balance sheet for the period 2013-2014 and 2014-2015 and other relevant documents. On 06.05.2016, the appellant filed an appeal against the order dated 29.01.2016 before this Tribunal. On 11.09.2017 the audit through a letter asked the appellant to submit documents for conducting the aud....
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....vide Service Tax appeal No. 70075 of 2020 in Final order No. 70003-70005 of 2021 dated 15.02.2021, wherein this Tribunal held that extended period of limitation is not invokable in such a situation. He further submitted that in the proceedings it is also alleged that the appellant has collected the service tax and not paid. He submitted that the demand has been proposed to recoverable under the proviso to Section 73(1) of the Finance Act, 1994 whereas if any amount has been collected by the appellant and not paid to the exchequer, then the same can be demanded in terms of Section 73A of the Finance Act, 1994. For this contention, he took the support of the order this Tribunal in the case of M/s Fusion India INC versus Commissioner of Central Excise, Service Tax, Lucknow in appeal No. ST/51697 of 2015 wherein vide Final order No. 72390 of 2018 dated 20.09.2018, this Tribunal held that the service tax was payable by the appellant even the penalties cannot be imposed by invoking the provisions under Section 73(1)of the Finance Act, 1994 and the said provisions cannot be invoked in this case, therefore, the impugned order is to be set aside. 4. On the other hand, learned Authori....
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....acility Services/Manpower Services) and the year-wise taxable and Non-taxable amount shown is as shown below :- (Amount in Rs.) Financial Year Non-taxable (Income from Sanitation Services/ Hospital & Para Medix Services) Taxable (Income from Facility Services/ Manpower Services) Total revenue from operation as shown in (Balance Sheet) Total amount shown in form 26 AS 2013-14 2,96,37,485 61,24,363 3,57,61,848 3,44,37,053 2014-15 2,66,81,551 1,55,50,872 4,22,32,423 4,34,12,497 2015-16 5,81,42,120 2,93,53,989 8,76,96,109 8,63,13,640 2016-17 8,47,78,647 4,10,99,805 12,58,78,452 12,23,96,139 Total 19,92,39,803 9,23,29,029 29,15,68,832 3.3 And whereas, the Party has filed the statutory half yearly ST-3 returns for the period from April-2013 to March-2017 and has shown their gross assessable/taxable value and Service Tax liability as paid by them, as shown below :- (Amount in Rs.) Period of Return Due date of Filing of Returns Actual date of Filing of Return Total Value of services as mentioned in ST-3 Returns Amount of Service Tax including all c....
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....and Total 29,15,68,832 4,07,50,945 As above calculated service tax liability amounting to Rs. 4,07,50,945/- for the period from F.Y. 2013-14 to 2016-17 include the service tax charged and collected amounting to Rs. 3,11,99,008/- as detailed in para 3.5 during the said period. The party had paid service tax amounting to Rs. 1,22,78,106/- as shown in their ST-3 returns against the service tax liability of Rs. 4,07,50,945/-. Accordingly, it appears that by suppressing the correct assessable value, they had evaded service tax (including all Cess) amounting to Rs. 2,84,72,839/- (Rs. Two Crores Eighty Four Lakhs Seventy Two Thousand Eight Hundred Thirty Nine Only) during the period F.Y. 2013-14 to 2016-17 and thereby, violated the provisions of Section 67 & 68 of the Finance Act, 1994 (here-in- refer referred to as "the Act') readwith Rule 6 of Service Tax Rule, 1994 (here-in-after referred to as "the Rules). The amount so evaded is recoverable from them under the proviso to Section 73 (1) of the Finance Act, 1994". 11. On examination of the show cause notice, we find that in balance sheet, the appellant has shown non-taxable service and taxable service separately and in ST-3 r....
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....t Care Service and they supply/provide patient helpers to these two medical institutions. Whereas, from the statement of Shri Tiwari and Balance Sheets of the party, it appears that neither did they got registered with the department immediately after commencing the work, nor paid any Service Tax till 13.05.2011. It also appears that they also did not pay Service Tax on the Para Medical Service on the pretext being exempted, which is nothing but 'Man Power Supply' a fact also admitted by Shri Tiwari in his statement, besides the services of disposal of biomedical waste which became exempted after introduction of Service Tax Notification No. 12/2012-ST dated 17.03.2012. Therefore, it appears that the party also deliberately did not pay service tax on these two services. And whereas, on scrutiny of Balance Sheets of M/s Sun Facility Pvt. Ltd. for the period 2009-10 (RUD-2), 2010-11(RUD- 3), 2011-12 (RUD-4) and 2012-13 (RUD-5), the amount of gross receipt from business operation in different head was as under- CHART-I Income as per Balance Sheet under various head. Year 2009-10 2010-11 2011-12 2012-13 Income from Mess Management 835945 3207686 45781 Income from....
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....d by appellant as Para Medical Services were nothing but Manpower supply Services and appellant did not pay service tax. We, therefore, find that there is contradiction in the said show cause notice. We further note that the said show cause notice has simply added together the receipts by the appellant from various heads in the balance sheet and demanded service tax on the entire receipts. We find that various agreements that must have been entered into by the appellant with the service recipient were not examined by Revenue. Further the invoices raised by the appellant were not examined by Revenue. It was essential to scrutinize the agreements and the invoices to come to a conclusion about exact nature of activity by the appellant so as to examine whether such activity was covered by definition of any service and whether any abatement from assessable value was available. We find that without undertaking any examination of the activity rendered by the appellant, on the basis of income statement demand was raised. We further note that appellant had contended before Original Authority that cleaning services were provided to Government Hospital and such cleaning services were if provi....
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....t were well known to the Department in earlier proceedings, therefore, the subsequent show cause notice cannot be issued by invoking extended period of limitation. The same view was taken by this Tribunal in the case of A.N. Kapoor (Janitors) Pvt. Ltd., wherein this Tribunal observed as under :- "16. It is not in dispute that the Appellant had taken service tax registration under "cleaning activity' services on November 09, 2006 and that ever since then it has engaged itself in rendering such services. According to the Appellant, it provided both taxable and non-taxable services. The non-taxable services are those services, which, according to the Appellant, have been exempted from payment of service tax under various Notifications issued from time to time. The Department did raise this issue through various letters issued to the Appellant and on August 13, 2007 the Appellant explained that the liability to pay service tax was exempted. However, the first show cause notice dated October 28, 2009 for the period November 2005 to January 2008 was issued to the Appellant demanding service tax on the services which the Appellant claimed had been exempted from payment of service tax. T....
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.... to 1986-87. A plea was taken by the Appellant, in response to the second show cause notice, that the allegations made in the second show cause notice were practically a repetition of the allegations made in the first show cause notice and so the invocation of the extended period of limitation was not justified. A third show cause notice dated September 12, 1988 for the period March 16, 1988 to June 27, 1988 was also issued on the same allegations. The Appellant again filed a reply on the same lines as was filed to the second show cause notice. The adjudicating authority, however, did not accept the plea and the demands raised in the show cause notices were confirmed. Appeals were filed before the Tribunal relating to the second and the third show cause notices. It was contended before the Tribunal that the extended period of limitation could not have been invoked since there can be no suppression of facts when a show cause notice had been issued by the Department on the basis of certain set of facts is followed by another show cause notice for a later period on the same set of facts. The contention advanced was that the Department was fully aware of the facts even at the time of i....
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.... the proviso to Section 11A of the Act for making the demand for the extended period." This judgment was followed by this Court in the case of ECE Industries Limited v. Commissioner of Central Excise, New Delhi reported in (2004) 13 SCC 719 = 2004 (164) E.L.T. 236 (S.C.). In para 4, it was observed : "4. In the case of M/s. P&B Pharmaceuticals (P) Ltd. v. Collector of Central Excise reported in [2003 (2) SCALE 390], the question was whether the extended period of limitation could be invoked where the Department has earlier issued show cause notices in respect of the same subject-matter. It has been held that in such circumstances, it could not be said that there was any wilful suppression or mis-statement and that therefore, the extended period under Section 11A could not be invoked." Similarly, this judgment was again followed in the case of Hyderabad Polymers (P) Ltd. v. Commissioner of Central Excise, Hyderabad reported in 2004 (166) E.L.T. 151 (S.C.). It was observed in para 6 : ".......... On the ratio laid down in this judgment it must be held that once the earlier Show Cause Notice, on similar issue has been dropped, it can no longer be said that there is any s....
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....tant documents referred to by the Appellant that went to the root of the matter could not have been ignored in this manner. 22. The Additional Director General has also noted in the impugned order that no document was made available by the Appellant to the investigating Officers either at the time of audit or during investigations by the Officers of the Directorate and so it was a case of suppression of information by the Appellant. This is only a bald statement as nothing has been mentioned as to what particular document was not filed. In support of the contention that the extended period of limitation could not have been invoked, the Appellant had placed reliance upon the two show cause notices, the order passed by the Tribunal and the earlier audit report. These were relevant factors which were required to be examined by the Additional Director General to arrive at a conclusion as to whether the extended period of limitation could be invoked. 23. What also needs to be noted is that the amount charged for the exempted service that were provided by the Appellant was being repeatedly shown by the Appellant in the ST-3 returns filed in 2014 and 2015, and it is not a ....
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....learly mentioned that they availed credit under the aforesaid rules. The audit partly accepted the same. It is only in the second audit that they noticed the mistake and initiated proceedings. Therefore, in the light of the aforesaid facts none of the other conditions prescribed in the Proviso exists in this case to extend the period of limitation of 5 years. It is in this background the Tribunal was justified in setting aside the order passed by the appellate authority and in restoring the order passed by the original authority. Therefore, there is no merit in this appeal. Accordingly, it is dismissed." 28. A Division Bench of the Tribunal in Trans Engineers India Pvt. Ltd. vs Commissioner of Central Excise, Pune [2015 (40) STR 490 (Tri.-Mumbai)] also examined whether the extended period of limitation could have been invoked when the audit report did not raise any query in respect of the payment of the service tax as alleged in the show cause notice. The relevant portion of the decision is reproduced below : 10. In our view the entire demand is to be set aside on the ground on limitation only. Revenue authority cannot invoke the extended period of limitation, when the re....
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.... indicate that the Appellant had actually collected service tax for the exempted services. Merely because the Appellant collected an amount inclusive of taxes does not mean that service tax was included because there are many other taxes that are required to be paid. 30. Thus, for all the reasons stated above, it is not possible to sustain the demand of service tax raised against the Appellant as the extended period of limitation contemplated under the proviso to section 73(1) of the Finance Act could not have been invoked". 14. We further take note of the fact that as argued by the learned Authorized Representative for the Revenue that appellant is providing taxable service of manpower recruitment and supply services, we find that the said service has been reflected by the appellant in their ST-3 returns and balance sheet and also paid the service tax thereon. 15. On merit also, we take note of the fact that no service tax was payable on cleaning services in terms of Sl. No. 12 of Notification No. 25/2012 - ST dated 20 June 2012 wherein the services provided to the Government, a local authority or a governmental authority by way of construction, erection, com....