TaxTMI 
TaxTMI 
2023 (11) TMI 219
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.... and also setting aside the demand of Service Tax on Notice-Pay. 2.1 Brief facts of this appeal indicate that the audit of the accounts of the appellant for the period from August 2012 to June 2017 has revealed: - i. Non-payment of Service Tax on Manpower Supply and Agency Service (MRA) under RCM, ii. Non-payment of Service Tax on Security Services under RCM, iii. Non-payment of Service Tax on Goods Transport Agency Service (GTA) under RCM, and, iv. Non-payment of Service Tax on Notice-Pay collected from employee. 2.2 Consequently a Show Cause Notice No. 10/2018 (AC) dated 12.04.2018 was issued proposing to demand: - i. Service Tax of Rs.29,92,325/- (Rupees Twenty Nine Lakhs Ninety Two Thousand Three Hundred and Twenty Five only) on Manpower Supply and Agency Service under RCM for the period from October 2012 to June 2017 under the proviso to Section 73(1) of Finance Act, 1994; ii. Service Tax of Rs.5,06,398/- (Rupees Five Lakhs Six Thousand Three Hundred and Ninety Eight only) on Security Services under RCM for the period from October 2012 to June 2017 under the proviso to Section 73(1) of Finance Act, 1994; iii.....
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....he appellant had stated that they had entered into agreements with these service providers and as per the agreements service charges along with the applicable Service Tax was paid to the service providers who are registered with the Department and must have paid the Service Tax collected to the Government. 2.7 The original adjudicating authority has observed that the appellant had failed to submit a) Any proof like challans, b) ST3 returns filed by the service providers, c) Any agreement signed between the service recipient and providers and d) Any declaration received from the service providers for evidencing i. Such payment to the exchequer ii. Not availed any CENVAT credit iii. Non-adjustment of the wrongly discharged liabilities during the following month or quarter while filing the statutory returns monthly or quarterly. iv. Not claimed any refund against the wrongly discharged Service Tax to the exchequer. 3.1 The Ld. Advocate Shri N. Viswanathan representing the appellant before the Tribunal has submitted that they have availed the services in respect of Manpower Reqruitment and Supply Agency Services an....
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....n a given case is on revenue and these ingredients need to be clearly brought out in the Show Cause Notice along with evidence thereof. The active element of intent to evade duty by action or inaction needs to be present for invoking extended period. It is submitted that the Revenue could not find any contumacious conduct or any fraud with an intention to evade payment of tax on the part of the appellant to justify invocation of larger time period. 3.4 The Ld. Counsel has also argued on revenue neutrality and relied on the judicial pronouncements in the following cases:- i. Asmitha Micro fin Ltd. Vs. Commissioner of Service Tax, Hyderabad [2020 (33) GSTL 250 (Tri. Hyd.)]. ii. Hyundai Motors Ld. Vs. Commissioner of Service Tax, LTU, Chennai [2019 (29) GSTL 452 (Tri. Chennai)]. iii. BCCI Vs. Commissioner of Service Tax, Mumbai [2019 (29) GSTL 304 (Tri. Mum.)] 4. The Ld. Authorized Representative Shri Harendra Singh Pal representing the Department has reiterated the findings of the lower adjudicating authority. He has argued that in respect of Manpower Recruitment and Supply Agency Services and Security Services, the service receiver is required to pay....
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....e decisions rendered in the cases of: - i. ELKOS Pens Limited Vs. Commissioner of Service Tax, Kolkata - I [2019 (24) GSTL 652 (Tri. - Kolkata)] wherein it was held that the appellant was not liable to pay Service Tax when service provider has already collected Service Tax and deposited the same with the Government. ii. Transpek Silox Industries Pvt. Ltd. Vs. Commissioner of Central Excise, Vadodara - I [2018 (17) GSTL 434 (Tri. - Ahmd.)] wherein the Tribunal Ahmedabad held:- "6. I find that as per Notification No. 30/2012-S.T., dated 20-6-2012 there is no dispute that the appellant was required to pay 75% of the Service Tax on "Manpower Recruitment Agency Service" availed. For the initial period, on pointing out by the Revenue the appellant immediately paid Service Tax. In that circumstance, the said demand is not sustainable against the appellant. For the another invoice on which the appellant did not pay Service Tax but the service provider paid the 100% of Service Tax. In that circumstance, the appellant is not required to pay 75% of the Service Tax in terms of Notification No. 30/2012-S.T., dated 20-6-2012. I also observed that if the payment has mad....
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....Tax on Manpower Recruitment and Supply Agency Service and Security Service to the original adjudicating authority for carrying out verification of copies of ST-3 returns filed by the service providers / documents or any certificate or declaration to pass a speaking order in strict observance of principles of natural justice. The appellant is also directed to produce any of these evidences after collecting from the service providers to ensure that the Service Tax collected was in fact paid to the Government account. 7.2.1 Regarding the second issue of invocation of extended period, the Show Cause Notice No. 10/2018 (AC) dated 12.04.2018 was issued covering the period from October 2012 to June 2017 in terms of proviso to Section 73(1) of Finance Act, 1994. 7.2.2 I find that the appellant has produced many copies of the invoices raised by the service providers of Manpower Recruitment and Supply Agency Services and also Security Services. It is no more res integra that extended period can be invoked only when there are ingredients necessary to justify the demand for the extended period in a case leading to short payment or non-payment of tax. The onus of establishing that such in....