AI Drafter 
TaxTMI 
TaxTMI 
2024 (11) TMI 1136
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....ined under Section 65(25b) of the Finance Act, 1994. 2.1. An audit was conducted of the records of the Appellant for the period from 2006-07 to 2010-11. During the course of audit, certain discrepancies were noticed. On account of the discrepancies noticed, an investigation was initiated against the Appellant. The Appellant thereafter submitted their balance sheet, Profit & Loss Account, sample copy of bills raised by them, sample copy of work orders and TDS details (Form 16A/Form 26AS) to the audit team. On verification of the documents furnished by the Appellant, it was found that the Appellant had not paid Service Tax appropriately for the period from 2006-07 to 2011-12. 2.2. A Statement showing the taxable values declared by the Appellant in the ST-3 Returns filed by them and the income received as per the Form 26AS, Profit & Loss Account has been prepared, which is reproduced below: - STATEMENT OF INCOME/RECEIPT YEAR As per Form 26AS (Rs) As per Profit & Loss A/c. (Rs.) As per ST-3 (Rs.) 2006-07 87562614.00 87562614.00 - 2007-08 45472050.67 44559932.00 7735301.00 2008-09 59856432.47 67879970.00 27093882.00 2009-....
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....ts, including supply of materials. As per Notification No. 01/2006-S.T. dated 01.03.2006, they are eligible for abatement of 33% from the taxable value and service tax is liable to be paid only on 67% of the taxable value received by them. If the abatement of 33% is allowed, then the Service Tax liability on the taxable value would be less than the service tax already paid by them. 6.3. The Appellant submitted that they have already paid Service Tax on the taxable value of Rs.17,72,81,266/-, which is more than the taxable value on which they are liable to pay service tax after the abatement. Thus, the appellant contended that the demand of service tax confirmed in the impugned order is not sustainable. 6.4. The Appellant further submits that the entire demand has been raised on the basis of the data available in their balance sheet, Profit & Loss Account and the data received from the Income Tax Department in Form 26AS. The appellant submits that they had taken registration with the Service Tax Department on 12.10.2006 and have been paying Service Tax and filing their S.T.-3 Returns regularly; they have not suppressed any information from the Department. Accordingly, it is th....
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....nd perused the appeal records. 9. We observe that the demand of service tax of Rs.2,60,03,775/- has been confirmed against the Appellant vide the impugned order based on the difference in the taxable value declared by the Appellant in their S.T.-3 Returns and the gross income receipt available in their balance sheet/Profit & Loss Account details. 10. During the course of the hearing, the Appellant contended that the Show Cause Notice issued on 04.07.2013 for the period from 2006-07 to 2011-12 is beyond the period of limitation of five years and accordingly, they submitted that the demand for the period from 2006-07 to 2007-08, covering the period beyond five years, is not sustainable. 10.1. In this regard, we observe that even though the Appellant had registered with the Service Tax Department in the year 2006, they filed their first Service Tax Return for the period from October 2006 to March 2007 only on 12.10.2009. The relevant date for computing the five-year period as per proviso to Section 73 of the Finance Act, 1994 is the date of filing of the first Return. Since the return for the period 2006-06 and 2007-08 were filed only on 12.10.2009, we hold that the demand ra....
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....h clear that the appellant has used goods and materials for execution of the work orders. So also it cannot be said that all these are entirely in the nature of 'Completion or Finishing service'. The department has alleged that the appellant has not furnished sufficient evidences to prove that goods and materials were used in the execution of Construction works. In the impugned order, the Adjudicating Authority has observed that the appellant has purchased a huge amount of raw materials however has not produced evidence to link the sale of materials to each client and therefore the abatement cannot be granted. Observation in the impugned order reads as under:- "19. It is not denied that they have purchased huge amount of raw materials. However, in order to get the benefit of Notification No. 12/2003-S.T., which must be strictly construed, value of only that material could be deducted from the gross value of service received, where there is a clear cut of sale to that customer to whom such services has been provided. Assessee has failed to link the sale of materials to each of such client and the gross value received from them. The notification does not provide bene....
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...., Welding Electrodes etc., we hold that the Appellant is eligible for abatement of 33% as provided under Notification No. 01/2006-S.T. dated 01.03.2006. 12. Regarding confirmation of the demand of service tax by invoking the extended period of limitation, we observe that the Show Cause Notice has been issued on the basis of the data submitted by the Appellant, i.e., from their balance sheet, Profit & Loss Account and Form 26AS.The Appellant submitted that they had obtained registration with the service tax department in the year 2006 and have been filing their Returns. Accordingly, it is their submission that they have not suppressed any information from the Department and thus the extended period of limitation is not invokable. 12.1. In this regard, we observe that the Appellant had been filing their Returns and paying Service Tax regularly. They have registered with Service Tax Department since 2006, but till the date of audit conducted in 2011, the Department had not raised any objection regarding any short payment of Service Tax by the Appellant. We observe that the if the demand has been confirmed on the basis of the data submitted by the appellant, i.e., from their bala....
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.... fact on the part of the appellant. We also find that it is admitted fact that the appellant have taken service tax registration and are filing the periodical returns regularly. The appellant have maintained proper books of accounts in the normal course of business. It is pertinent to note that the entire case of the department on merit is that since appellant have availed Cenvat Credit, they violated the condition of abatement notification No. 01/2006-ST. As discussed above the facts that availment of Cenvat Credit and payment of Service Tax on the abated value were declared in the ST-3 return. Hence, having all the facts were disclosed to the department, nothing prevented department from issue of show cause notice within normal period of one year. Therefore, the demand raised in the show cause notice is clearly time-barred. 4.3 Since the demand is not sustainable on limitation alone, we refrain from giving finding on merit of the case and the same is left open." 12.3. In the case of Balajee Machinery v Commissioner of CGST & Excise, Patna-II [2022 (66) G.S.T.L. 440 (Tri-Kolkata)], it has been held as under: "10. In so far as the issue of limitation is concern....
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.... of road construction. When road construction is exempt, every activity is exempt relating to the road construction including consulting engineer services. The appellant also relied on the ruling in Lord Krishna Real Infra Pvt. Limited v. Commissioner of Customs, CE & ST, Noida, Final Order No. 70126/2019, dated 27-12-2018. This Tribunal has held in other disputed cases, that even the barricade provided on the side of highway, maintaining greenery on the side or middle of highway, construction of any facility, refreshment centre for road users, is also part of the road construction and such activity is also exempt. Even the administrative building constructed by the concessionaire, for construction of the road or highway for administration and collection of toll etc. is part of road. 14.-------------------------------------------------------------------- 15. Accordingly, in view of our findings, we allow the appeal and set aside the impugned order. We also hold that extended period of limitation is not available to Revenue. We also hold that appellant is also entitled to consequential benefits, in accordance with law." 12.5. Accordingly, by relying on the decis....