TMI Blog2023 (11) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... much within the knowledge of the department for which earlier show cause notice was issued on 22.11.2001 for the period April, 2000 to March, 2001 and the second show cause notice was issued on 19.03.2007 for the period 01.01.2006 to 30.09.2006 - the said show cause notice was set aside by the Tribunal vide its order dated 24.05.2011, therefore, the present show cause notice invoking the extended period of limitation is completely barred by limitation as held in the case of NIZAM SUGAR FACTORY VERSUS COLLECTOR OF CENTRAL EXCISE, AP [ 2006 (4) TMI 127 - SUPREME COURT] by the Hon ble Apex Court. As far as the merits of the case are concerned, as per the various agreements which are produced on record, low bed trollies with tractors proved with drivers to run within the factory, tractor crane with driver run within the factory of M/s Nestle do not fall in the category of Business Auxiliary service rather it falls under supply of tangible goods service which was made taxable w.e.f. 16.05.2008. We also find that various works carried out for M/s Nestle India Ltd. value wise certificate for the period in question has been provided by Nestle India Ltd. which is at page 41 of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n issued to the appellant on 29.09.2008 alleging therein that M/s Shemeo India Transport are providing services under Cargo handling Services , BAS , Manpower Recruitment Supply Agency Service Erection Commissioning Installation Services to M/s Nestle India Ltd, Moga without obtaining Service Tax Registration. It is alleged, Nestle vide their letter dated 17.2.2005, 27.5.2005, 5.6.2006 revealed that M/s Shemco India Transport has provided services in relation to material handling, loading, unloading, providing trailers, low bed trollies, tractor trollies, tractor cranes, erection commissioning installation of plant machinery with requisite manpower to Nestle since April 2003 to Dec. 2005 under written contracts from time to time. The appellant received an amount of Rs.34,22,047/- from M/s Nestle involving service tax of Rs.3,09,800/- which has been demanded in the notice. The Adjudicating Authority vide O-in-O No.02/ST/DC/SNG/2011 dated 11.3.2011 confirmed the demand of service tax Rs. 3,09,800/-, interest equal penalty under Section 78 Rs.1000/- under Section 77 of the Act. Aggrieved by the said order, the appellant filed appeal before the Commissioner who reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen all relevant facts are in the knowledge of the authorities when the show cause notice was issued then issuing second and third show cause notices alleging suppression of facts on the part of assessee will not sustain. 7. He also relied upon the judgment of CESTAT in the case of J.K. Enterprises Vs. Principal Commissioner, CE, Alwar reported in 2023 (70) GSTL 297 (Tri.-Del.) wherein it has also been held by the Tribunal that when the facts are in the knowledge of the department while issuing the first show cause notice, second show cause notice could not have been issued invoking the extended period of limitation on same facts as facts were already in the knowledge of the authorities. As far as, the merits are concerned, the Ld. Counsel submits that the issue involved in the present case stands decided in favour of the appellant. He further submits that as per the various agreements copies of which are on record of the appeal paper book, low bed trollies with tractors provided with drivers to run within the factory, tractor crane with driver run within the factory of M/s Nestle do not fall under the category of Business Auxiliary Service rather it falls under supply of tang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoking the extended period of limitation is completely barred by limitation as held in the case of Nizam Sugar Factory cited (Supra) by the Hon ble Apex Court. Similarly, the Tribunal in the case of J.K. Enterprises cited (Supra) also held that when the facts are in the knowledge of the department subsequent show cause notice alleging suppression cannot be issued and the entire demand was found beyond normal period of limitation and was set aside. As far as the merits of the case are concerned, we find that as per the various agreements which are produced on record, low bed trollies with tractors proved with drivers to run within the factory, tractor crane with driver run within the factory of M/s Nestle do not fall in the category of Business Auxiliary service rather it falls under supply of tangible goods service which was made taxable w.e.f. 16.05.2008. We also find that various works carried out for M/s Nestle India Ltd. value wise certificate for the period in question has been provided by Nestle India Ltd. which is at page 41 of appeal memo. But the said certificate was not considered by both authorities below. 12. The said certificate clearly gives the nature of the w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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