TaxTMI 
TaxTMI 
2024 (2) TMI 85
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....Notice was issued under Section 73(1) for demand of service tax under the category of "Support Service of Business or Commerce". The Adjudication authority confirmed the demand of Rs. 3,10,981/- (Rupees three lakhs ten thousand nine hundred eighty one only) with interest and imposed penalty under Section 76, 77 & 78 of the Finance Act, 1994. Aggrieved by the said order, appellant preferred appeal before the First Appellate Authority and after considering the submissions made by the appellant, Commissioner of Central Excise (Appeals-II) partly allowed the appeal with respect to the service rendered by M/s Sreenivasa Caterers subject to verification of the original documents by lower authority to re-calculate the tax. However, he upheld the demand against the services provided by M/s Swadeshi Caterers. Aggrieved by said Order, present appeal is filed. 2. When the matter came up for hearing, Learned Counsel for the appellant submits that the transaction carried by both the caterers are one and the same. Moreover, for the entire amount collected from the members, service tax is paid by both the caterers and these facts were brought to the knowledge of the Adjudication authority/Appe....
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....id amounts collected from the caterers. 3. Learned Counsel further submits that after submitting proper reply to additional inquiry, investigation has not culminated in any SCN. Thereafter an objection was made during audit and as per the summary of audit, an objection was made that the amount deducted from the caterers amounting to 'Business Support service' and there is an omission on the part of the appellant to pay service tax of Rs. 30,48,883/- during the period of 2006-2007. Based on the internal audit records, another notice was issued to the appellant on 06.12.2007 intimating that for the period 01.04.2006 to 31.03.2007, appellant received an amount of Rs. 25,40,694/- as catering commission from caterers and said activities fall under the definition of 'Business Support Service', which is effective from 01.05.2005. In response to the audit inquiry, appellant made detailed submission on 26.12.2007, wherein it is submitted that they are not providing "support service of business or commerce". The bills are not raised by outdoor caterer and appellant raised bills on the members and collected sale proceeds. Service is provided to the members including kitchen, kitchen equipm....
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....ve. For the same reasons, we do not find any fault with the decision of the Commissioner (Appeals) to set aside the penalty under Section 78 in the event, we do not find any merit in the appeals filed by the department for which reason they are dismissed. 4. Learned Counsel also draws our attention to the Final Order of this Tribunal in the matter of M/s NCR Corporation India Pvt. Ltd. Vs. Commissioner of Central Tax, Bangalore North (reported in 2021 (55) G.S.T.L 6 (Tri. Bang) 12. Coming to the issue of limitation, we find that the Department has invoked the extended period of limitation to confirm the demand on the ground that the appellant has suppressed the material information from the Department so as to evade the payment of tax and further the Learned Commissioner in the impugned order at para 32.2 observed that the audit was conducted for the period 2006-07 in February, 2007 to June, 2007 and balance sheet was released only in September, 2007 and hence the audit party was not provided with the balance sheet in June, 2007 and further the copy of the agreement and relevant information were provided to the Department only in 2010 during the course of audit and the ....
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....ain that the expenses incurred in relation to professional services in relation to foreign exchange payment made and received and also submitted the copies of the sample invoices. Since after taking the clarification from the appellant, the Department was aware of the services received by the appellant from outside India as well as services provided by the appellant as early as June, 2007 and all the information and the documents were provided by the appellant to the Department during the course of audit/along with reply to audit enquiry. Hence the Department cannot allege wilful suppression of facts. Further we also find that during the audit, appellant had submitted its financial statements and the copy of ISA as documentary support and there after no issue was raised by the Department pursuant to such audit during the said period. Further we find that extended period of limitation under Section 73(1) of the Finance Act can only be invoked if the service tax has not been paid by a person by reason of fraud, collusion, wilful misstatement or suppression of facts or contravention of any provision of act or the rules made thereunder with intent to evade payment of service tax. Furth....
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....EI Equipment Finance Ltd Vs. UOI (reported in 2018 (17) G.S.T.L 598 (Cal.) iv. CST Vs. M/s Rani Meyyammal Hall (reported in 2019 (24) G.S.T.L 218 (Tri. Chennai) 6. Further the counsel for the appellant submitted that even if it is found that the extended period of limitation can be invoked against the appellant, the appellant's case falls within the law laid down by Hon'ble Apex Court in the matter of M/s Kolkata Club case and in appellant's own case covered by Final order 20198-20199 of 2020 dated 17.02.2020 and Final order No. 1354 of 2011 dated 28.06.2023 of this Tribunal. Hence the benefit of small-scale exemption under Notification No. 6/2005 dated 01.03.2005 should be granted by the Department in respect of the value of taxable services, if any and the appellant would be entitled to cum tax value benefit in terms of Section 67 of the Finance Act, 1994, since no service tax was collected by the appellant. Further, Cenvat benefit also be extended as per the judgment of the Hon'ble Supreme Court in the matter of M/s Formica India Division Vs. CCE (reported in 1995 (77) E.L.T 511) and M/s mPortal India Wireless Solutions Pvt Ltd Vs. CST (reported in GST 2012 (27) STR ....