TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 91
X X X X Extracts X X X X
X X X X Extracts X X X X
....n Sub-Contract basis from their premises located at 2nd Floor, Room No. 205, 1 Crooked Lane, Kolkata-700069, for which they have obtained service tax registration from the Service Tax Department. The Service Tax registration No. AEAPK6185QSD005 obtained by the appellant falls within the jurisdiction of Service Tax, Commissionerate located in Kolkata. In addition, the Appellant are engaged in the trading in TMT Bars from their above referred premises. The Appellant has been filing returns regularly for the services rendered by the Head Quarters located with the jurisdiction of Service Tax commissionerate, in Kolkata. 2.1. During the Financial Year 2013-14, the Appellant had obtained another service tax registration as they intended to set up a Fly Ash Brick factory at Jamuria. The premises at Chatterjee Niwas, Jamuria Nandi Road, Jamuria Hut, Jamuria were thus hired. Service Tax registration was also obtained using this address and Registration No. AEAPK6185QSD001 was grante. This Registration falls within the jurisdiction of Bolpur Commissionerate. However, the project for setting up the Fly Ash Brick plant was shelved. Accordingly, the said premises hired for rendering the servic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ission that no taxable service was rendered with respect to the Registration No. AEAPK6185QSD001, the officers of Bolpur Commissionerate proceeded to issue the show cause notice to them demanding service tax. Thus, the appellant submits that the Notice issued without jurisdiction is void ab initio and hence the demands confirmed on the basis of such notice is not sustainable under law. 3.2. The appellant further submits that during the course of adjudication also they have submitted the details of Work Orders executed by them and claimed the benefit of exemption as provided under Sl no 12, 12A, 13 and 29(h) of the Notification No 25/2012. The appellant submits that the Ld. adjudicating Authority has examined the documents and recorded in the Order-in-Original. However, he proceeded to confirm the demands ignoring their claim of availability of the benefit of Sl no 12, 12A, 13 and 29(h) of Exemption Notification No 25/2012. 3.3. Thus, the appellant submits that the show cause notice issued was void ab initio as it was issued without jurisdiction. Hence, the demand of service tax confirmed on the basis of such void ab initio notice is not sustainable. 3.4. On merits of the case, t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lant no sooner these were asked for by the Department. Further, there is no requirement in law or any circular by the Department that the Appellant should suo moto provide details of these to the Department. 4.3. In support of their contention, the appellant relied on the decision of the Hon'ble Supreme Court in the case of Pahwa Chemicals Pvt. Ltd. vs. Commissioner of Central Excise, Delhi [2005 (189) ELT 257 (SC)], wherein it has been held that mere failure to declare does not amount to misdeclaration or wilful suppression. Some positive act on part of the party to establish either wilful misdeclaration or wilful suppression is must. Thus the extended period provisions under 11A(1) of Central Excise Act, 1944 would not apply. 4.4. The appellant submits that proceedings in this case has been initiated on the basis of the information received from the Income tax Department in respect deduction of tax at source under various sections of the Act for the financial years 2015-16 to 2017-18. They have been regularly filing ST-3 returns during the Period Apr 2017 to June 2017 and the last return was filed on 19.01.2018. As there is no suppression of fact with intention to evade the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he out set, we find that the appellant has questioned the jurisdiction of Bolpur Commissionerate to issue the Notice to demand service tax. It is a fact on record that the appellant has separate registrations having registration No. AEAPK6185QSD005 at Kolkata and Registration No. AEAPK6185QSD001 at Bolpur. We observe that on receipt of the data from the Income Tax department, officers of Bolpur Commissionerate sought various details from the appellant and recorded statements. Shri. Rounak Kumar Jain authorised representative of the appellant, in his statement dated 24.11.2020 has categorically stated that they have not rendered any service within the jurisdiction of Bolpur Commissionerate and hence they have not filed any returns with respect to the Registration No. AEAPK6185QSD001. Regarding the reasons for the difference in the value declared in the ST-3 returns filed by them in the Service Tax Commissionerate under Service Tax registration No. AEAPK6185QSD005, he has explained that they have rendered various services such as Road Construction, construction of historical monuments, construction of buildings meant predominantly for use other than for commerce and industry which we....
X X X X Extracts X X X X
X X X X Extracts X X X X
....argeable to service tax at Jamuria. We find that the said assumption is unfounded and not based on facts. Even otherwise, the jurisdiction is conferred by law and it cannot be assumed to issue a demand notice. Thus, we hold that the Notice issued was without jurisdiction and hence it is void ab initio . Accordingly, we hold that the demands confirmed on the basis of such void ab initio notice is not sustainable under law. 9. The next issue raised by the appellant is that the demands have been raised on the basis of the data received from the Income tax department and the information available in the balance sheet and Profit and Loss Account. It is the submission of the appellant that the Balance Sheets are public documents available to anybody for asking. Similarly, the 26AS statement of the Income Tax is always available to anybody for asking. Further the complete case has been adjudicated on the basis of Form 26AS, where the details of Department to whom the Appellant has provided Works Contract services has been mentioned. Thus, the submission of the appellant is that they have not suppressed any information from the department and hence the demand confirmed by invoking extende....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s reported by the Income Tax department. 9.6. This view has been held by this Tribunal in the case of M/s. Balajee Machinery Vs Commissioner Of CGST & Excise, Patna-II reported in 2022 (66) G.S.T.L. 440 (Tri. - Kolkata), wherein it has been held as under: "10. In so far as the issue of limitation is concerned, we do not find any ingredient of fraud or suppression with an intent to evade payment of tax. In the case of Pappu Crane Services v. CCE, Lucknow (Final Order No. 71246 of 2019 in ST Appeal No. 70707 of 2018), the Co- ordinate Bench of Tribunal at Allahabad has held that where the demand is merely based on the data appearing in the Income Tax Portal, there cannot be said to any fraud or suppression so as to justify invocation of extended period of limitation. Therefore in the present case, in our view, the demand raised for the period up to March, 2015 is completely barred by limitation and accordingly the demand is set aside. Further, since there is no element of fraud or suppression, we are of the view that the entire penalty amount is liable to be set aside." 9.7. We find that a similar view has been expressed by this Tribunal in the case of M/s. Munna Construction v. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e appellant shown all the details in ST-3 returns. We find that Appellant has shown the category of Transport of Goods by Rail services in all the ST-3 returns and has also shown the fact that they were availing Cenvat Credit. In the said ST-3 return, admittedly against the "Column A1 -Name of Taxable Service" Appellant have shown name of service as Goods Transport Agency and Transport of Goods in Container by Rail Service. Further in column 5B appellant have shown the details of Cenvat Credit Taken and utilized. 4.2 It becomes clear from the ST-3 return that the fact that appellant were discharging Service tax on Transport of Goods in container by Rail service and availing Cenvat credit and utilized the Cenvat credit was in the knowledge of the Revenue. However show cause notice to the Appellant was issued on 26-2-2013. Inasmuch as the entire information was in the knowledge of the Revenue, the longer period of limitation is not available. In view of these facts the show cause notice should have been issued within the normal period of one year as prescribed under section 73(1), whereas the show cause notice for the period April 2008 to March 2009 was issued on 26-2-2013 i.e. aft....
X X X X Extracts X X X X
X X X X Extracts X X X X
....extended period of limitation is not available to Revenue under the facts and circumstances. We further hold that the appellant is entitled to exemption under the Notification No. 25/2012-S.T. under Sl. No. 13(a) of the said notification for providing consulting engineer services in the matter 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 impugn....