TaxTMI 
TaxTMI 
TaxTMI 
2023 (12) TMI 952
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..... 2. Ld. Counsel Sri M. Karthikeyan appeared and argued for the appellant. It is submitted by the learned counsel that the show cause notice dt. 22.04.2013 is the second show cause notice issued against the appellant by invoking the extended period. For this reason itself, this demand is not sustainable. It is submitted that for the very same period, show cause notice dt. 17.10.2012 was issued against the appellant demanding service tax for the period August 2007 to March 2011 under the category of 'Works Contract Service'. The appellant approached the Settlement Commission and paid up the entire service tax liability along with interest. The earlier SCN was issued on the basis of ST-3 returns filed by the appellant for the relevant periods. In the said returns, the appellant had declared certain amounts falling under 'exempted services'. The demand in the present SCN is also raised on the basis of ST-3 returns itself for the above period on the basis of figures which have been declared by the appellant as 'exempted services'. Though it is alleged by the department that the appellant has suppressed facts with intent to evade payment of service tax, since the Department had issued ....
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....r that the activity does not fall under rendering of services. The activity being fabrication at site using the free material supplied by customer to appellant, the activity would fall under 'manufacture' as it involved fabrication of structural items at the site of the customer. 2.3 The decision in the case of CCE & Service Tax, Surat Vs Plus Tech Fabricators Pvt. Ltd. 2020 (11) Centax 246 (Tri.-Ahmd.) was relied by the counsel to argue that in the said case the activity of welding, fabrication, cutting, binding and other related activities done on job work basis for and on behalf of M/s.L & T Ltd. in regard to manufacture of ship was held to be 'manufacture' as under Section 2(f) of Central Excise Act, 1944 and did not involve any service. 2.4 The decision in the case of Thakarshi J Likhiya Vs CCE & ST Rajkot - 2023 (6) TMI 847 - CESTAT Ahmedabad was relied by the counsel to argue that invocation of extended period of limitation cannot sustain when the liability of service tax has been discharged by the main contractor on the total value of contract which includes the value of service provided by the sub-contractor also. Ld. Counsel drew assistance of the order of the Tribunal ....
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....own as exempted are taxable under MRSA services as it involves supply of labour. The work orders issued by M/s.Comtech, M/s.Espee Tech & M/s.D.R Associates show that the work orders are for executing welding, fabrication works at site. We have to say that the department was aware of the fact that the appellant has declared certain amounts as 'exempted services' in their returns as early as 2011. Thereafter, the present SCN has been issued on the basis that the appellant has supplied man power whereas the earlier SCN is alleging that appellant has short paid service tax under works contract services. We are of the view that the department would have come across the figures declared as 'exempted services', while perusing the ST-3 returns for issuing earlier SCN by invoking extended period. Therefore all information when available before the department a second show cause notice alleging suppression of facts cannot sustain. The department when equipped with all facts as declared in the ST-3 returns ought to have initiated proceedings on all grounds in the first SCN itself. The Hon'ble Apex Court in the case of Nizam Sugar Factory (supra). observed as under : "8. Without going into t....
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....issioner 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 suppression. The extended period of limitation would thus not be available. We are unable to accept the submission that earlier Show Cause Notice was for a subsequent perio....