TaxTMI 
TaxTMI 
2023 (7) TMI 951
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.... not entitled to the benefit of Notification No.19/2003-ST dated 21.08.2003 and No.1/2006-ST dated 01.03.2006 as value of the tower supplied free by various clients was not included in the assessable value; therefore, the appellants were required to pay Service tax to the tune of Rs.2,85,81,185/- should be recovered along with interest and penalty under Section 76 & 78 of the Finance Act, 1994. Commissioner vide Order dated 29.06.2012 has dropped the proceedings initiated vide above show cause notices. Department is in appeal against the impugned order. 2. Shri Rajeev Gupta assisted by Shri Nikhil Kumar Singh, Authorized Representatives, for the appellant/Department, reiterates the grounds of appeal and submits that though the Adjudicating Authority has held that the respondents had not included the value of plant, machinery or equipment erected, commissioned or installed in the gross value charged by them from the service recipients and as such they were required to pay Service Tax on the gross value charged without availing the benefit of abatement, he dropped the proceedings finding that extended period cannot be invoked; the Adjudicating Authority has erred in appreciating the....
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.... the conclusion that there was no suppression etc. on the part of the respondents with an intent to evade payment of Service Tax and therefore, extended period cannot be invoked. 5. He submits that it has been categorically directed, in the Manual for Scrutiny of Service Tax Returns 2009 published by Central Board of Excise and Customs, at Para 1.2.1A that: "It is the view that assessment should be the primary function of the Central Excise Officers. Self-assessment on the part of the taxpayer is only a facility and cannot and must not be treated as dilution of the statutory responsibility of the Central Excise Officers in ensuring correctness of duty payment. No doubt, audit and anti-evasion have their roles to play, but assessment or confirmation of assessment should remain the primary responsibility of the Central Excise Officers." He submits that it has been further clarified at Para 1.2.2A that: "The authority to conduct scrutiny of returns for verifying the assessment done by the assessee is provided in Rule 5A of the Service Tax, Rules, 1994. This rule, inter alia, authorizes the Commissioner to empower any officer to carry out 'Scrutiny, verification and checks, as may be ....
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.... not required to be added in the gross value for availing the abatement. He relies on the following cases and submits that extended period of limitation cannot be invoked in the subsequent show-cause notices. * Nizam Sugar Factory- 2008 (9) STR 314 (SC) * Manipal Universal Learning Pvt. Ltd.- 2020 (372) ELT 408 (Tri. Bang.) * D & M Building Product Pvt. Ltd.- 2019 (370) ELT 1183 (Tri. Bang.) 9. Heard both sides and perused the records of the case. The main issue that requires our consideration in the case is as to whether the impugned show-cause notices is time barred and as to whether the Adjudicating Authority was correct in holding so. Learned Counsel for the appellants submits that the respondent has been filing the Returns from time to time and as such there is no wilful suppression on the part of the respondent. We find that the Adjudicating Authority though finds that the exemption contained in Notification No.19/2003-ST dated 21.07.2003 and Notification No.1/2006-ST dated 01.03.2006 is not applicable to the respondents as the service receiver has not supplied any plant, machinery or equipment. However, learned Adjudicating Authority holds that the issue is time ba....
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....revenue authorities. The jurisdictional revenue authorities had not raised any objection with regard to the availing of abatement from the gross value charged by the Noticees from the service recipients. No allegation has been made in the show cause notices that the ST-3 return were not filed or the information shown under the ST-3 return was not correct or the information required to be furnished in the returns was not furnished. Further, there is no other allegation in the show cause notices that the Noticees had not filed any other return/information which was required to be filed or that the information was incorrectly filed with the jurisdictional revenue authorities. 3.14 Though the Noticees had incorrectly availed benefit of abatement under notification 19/2003 and 1/2006 yet they had filed the prescribed returns on time with the jurisdictional revenue authorities and had disclosed the fact of having availed the abatement. It was for the jurisdictional revenue authorities to scrutinize and assess the ST-3 returns and take appropriate action for recovery of the service tax short paid. By failing to take the appropriate action on the basis of information made available by t....
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....ot satisfied with the Returns, In the instant case, it is seen that no queries of any sort have been raised or no mistakes were pointed out by the Department on the basis of the scrutiny of the Returns of the respondent. Under the circumstances, it is not open to the Department to allege that there has been wilful suppression of material facts on the part of the respondent. To this extent, we find that the Adjudicating Authority has rightly held that there is no suppression, mis-declaration etc., whatsoever, by the respondents. 11. We find that Tribunal has gone into the very same issue, in respect of the respondent's office in Delhi, in respect of show-cause notice issued on similar lines, and vide Final Order No.50207/2006 have upheld the order of the Adjudicating Authority who dropped the proceedings. Tribunal went into the merits of the case and held as follows: 3. We have considered the submissions of both sides. It is now settled by the Supreme Court in the case of Larsen & Toubro Ltd. - 2015. - TIOL - 187 - SC-ST that works contract was not liable to service tax prior to 1.6.2007. It is also settled by the CESTAT judgment in the case of Bhayana Builders (P) Ltd. (su....