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2023 (8) TMI 851 - CESTAT AHMEDABADInvocation of extended period of 5 years as per the first Proviso to Subsection(1) of Section 73 of Finance Act, 1994 - period involved in the present case is 01.11.2007 to 31.03.2011 and the show cause notice was issued after one year i.e. 07.06.2012 - Non-payment of service tax - service provided in the capacity of Sub-contractor. HELD THAT:- It is found that the issue was not free from doubt and the matter was referred to the Larger Bench and due to conflicting judgments the larger bench has finally decided that in case of service provided by sub-contractor even though the main contractor have paid the service tax on total value the sub-contractor is liable to pay service tax.Since there was serious doubt about the taxability of the sub-contractor and also due to conflicting judgment, which subsequently resolved by the larger bench in the case of M/s Melange developers Pvt. Ltd [2019 (6) TMI 518 - CESTAT NEW DELHI], the bonafide belief of the appellant that they are not liability to pay service tax cannot be doubted, questioned.In such situation the extended period which can be invoked only on the ingredient such as suppuration of fact, mis-statement, fraud, collusion with intent to evade payment of Service Tax, cannot be invoked. This Tribunal has consistently taken a view that on the issue of taxability on sub-contractor the extended period cannot be invoked this has been considered in M/s. Synergy Engineers Group Pvt. Ltd. Delhi [2023 (2) TMI 478 - CESTAT NEW DELHI]. Thus, it is consistently held that in the case of Service Tax liability on the sub-contractor demand for the extended period cannot be sustained in the light of the larger bench judgment in the case of M/s Melange developers Pvt. Ltd - the entire demand being issued for extended period i.e. beyond one year from the date of show cause notice shall not sustain on limitation alone. The impugned order set aside - appeal allowed.
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