9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (5) TMI 727 - AT - Service TaxSecurity services - Invocation of extended period of limitation - appeal no. ST/275/2011-Mum. - period 1st February 2001 to 30th September 2004. - Held that - appellant was not declaring the value of the service tax correctly. It was based upon the painstaking exercise done by the Revenue covering 422 customers that the correct value of the services and the amount of service tax have been computed. This is a clear cut case of suppression of facts with willful intention to evade payment of duty. ST-3 returns field during the period did not reflect the correct position. - Demand invoking extended period of limitation confirmed - Decided against the assessee. Appeal no. ST/85626, 85627, 85633/2013-Mum. - Extended period of limitation - Security Agency Services, Manpower Recruitment or Supply Agency Services, Business Support Services and Cleaning Activity Services. - Security Agency Services provided to SEZ and ONGC - Held that - In the facts and circumstances particularly when all the activities were informed, detailed investigation had taken place and another show cause notice invoking extended period was already issued, one cannot justify invocation of extended period on this ground. Commissioner is correct in holding that in view of Hon ble Supreme Court s Decision in the case of Nizam Sugar Factory (supra), extended period of limitation cannot be invoked in the present facts and circumstances. We also note that Hon ble Supreme Court decision in the case of Chemphar Drugs Liniments (supra) is fully applicable in the present circumstances. - Decided against the revenue. Demand for normal period of limitation - Held that - adjudicating authority has found that the appellant has produced the requisite certificate in requirement of security agency services provided to SEZ unit or to developers of the SEZ and based on these certificates along with Chartered Accountant certificate, and hence adjudicating authority found that the demand does not survive except a small amount relating to one STEP unit (which was confirmed). - order of original authority is correct - Decided against the revenue. Appeal no. ST/85713, 86826, 86827/2013-Mum - valuation - security services provided to ONGC - demand in respect of reimbursement / compensation received - Held that - The fact that ONGC is not paying to the appellant/assessee will not make any difference as far as appellant/assessee s liability to pay the service tax to the Government is concerned. The fact that ONGC is not paying to them is a matter between the appellant/assessee and ONGC. We, therefore, hold that appellant is liable to pay the service tax as the services provided to ONGC and on the gross amount including salary, EPC, ESIC etc. - Decided against the assessee. Service tax on cleaning activity - scope of show cause notice - Held that - It may be true that the demand notices did not speak of the cleaning service or demanded the service tax but same was demanded as Manpower Recruitment and Supply Service, but the fact remains the appellant/assessee was aware of the same, has provided the same service, is not disputing the taxability of the said service and therefore, at this stage appellant/assessee cannot be permitted to go back on his words. Even the payments made by the appellant/assessee were voluntarily and cannot be considered under duress as the payments were made after the adjudicating order was passed and before the appeals were filed before this Tribunal. - Demand confirmed - Decided against the assessee.
Issues Involved:
1. Non-receipt of relied upon documents by the appellant/assessee. 2. Valuation of security services and inclusion of salary, EPF, ESIC, etc. 3. Invocation of the extended period of limitation. 4. Taxability of services provided to SEZ units. 5. Classification and taxability of various services provided by the appellant/assessee. 6. Imposition of penalties under Section 78 and other provisions. 7. Confirmation of demands relating to security services provided to ONGC. 8. Service tax on reimbursement/compensation of expenses. 9. Service tax on cleaning services. Detailed Analysis: 1. Non-receipt of Relied Upon Documents: The appellant/assessee contended that they were not provided with the documents obtained from approximately 400-422 customers before the adjudication. However, the tribunal found that the appellant did not raise this issue during the five-year gap between the issuance of the demand notice and the adjudication. The tribunal concluded that the appellant had received the documents on 27.4.2011 and failed to make a meaningful case to indicate that the conclusion reached in the impugned order would be amended. Therefore, this contention was rejected. 2. Valuation of Security Services: The appellant argued that the salary, EPF, ESIC, etc., should not form part of the assessable value as these were reimbursements. The tribunal held that under Section 67 of the Finance Act, 1994, the gross amount charged includes all such payments. This position was supported by the decisions in Punjab Ex-Servicemen Corporation Vs. CCE and GDA Security Pvt. Ltd. Vs. Union of India. The tribunal found no merit in the appellant's contention and upheld the inclusion of these amounts in the taxable value. 3. Invocation of Extended Period of Limitation: The tribunal examined the applicability of the extended period of limitation under Section 73 (1) of the Finance Act. It referred to the Supreme Court's decision in Nizam Sugar Factory Vs. CCE, which held that the extended period could not be invoked on the same set of facts already known to the department. The tribunal agreed with the adjudicating authority that the extended period could not be invoked for the demand notice dated 23.4.2010, except for the period October 2008 to March 2009. 4. Taxability of Services Provided to SEZ Units: The tribunal noted that the appellant had claimed exemption for services rendered to SEZ units and provided the necessary certificates and Chartered Accountant's certification. The adjudicating authority accepted these certificates and confirmed only a small demand relating to one SEZ unit. The tribunal found no reason to dispute the adjudicating authority's findings. 5. Classification and Taxability of Various Services: The tribunal observed that the department failed to examine the nature of services provided by the appellant and whether they were taxable. The adjudicating authority found that the demand notices did not quantify the tax for certain services and relied on balance sheet figures without examining the agreements. The tribunal upheld the adjudicating authority's decision to set aside demands that were not properly substantiated. 6. Imposition of Penalties: The tribunal upheld the imposition of penalties under Section 78 and other provisions, agreeing with the adjudicating authority's findings of suppression of facts with the willful intention to evade payment of duty. 7. Confirmation of Demands Relating to Security Services Provided to ONGC: The appellant argued that ONGC refused to pay service tax and that reimbursements should not be included in the taxable value. The tribunal held that the appellant was liable to pay service tax on the gross amount, including salary, EPF, ESIC, etc., as these were integral to the security services provided. 8. Service Tax on Reimbursement/Compensation of Expenses: The tribunal found that reimbursements were part of the taxable value and upheld the confirmation of demand for service tax on these amounts. 9. Service Tax on Cleaning Services: The tribunal noted that the appellant admitted to providing cleaning services and had agreed to pay the service tax during the adjudication. The tribunal dismissed the appellant's contention that the demand notices did not cover cleaning services, as the appellant had voluntarily paid the tax and initially did not appeal against it. Conclusion: All four appeals filed by the appellant/assessee and three appeals filed by the Revenue were dismissed. The cross-objection filed by the Revenue was also disposed of. The tribunal upheld the findings and decisions of the adjudicating authority on all issues.
|
