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2019 (1) TMI 251 - CESTAT NEW DELHIRecovery of short payment of Service tax - Partial reverse charge (RCM) - Department noticed that appellant has been making payment on 75% instead of 100% on total value/ expenses towards payment made to the labour contractor under Manpower, Recruitment And Supply Service - N/N. 30/2012 dated 20.06.2012 as amended - Revenue neutrality - time limitation - penalty - Held that:- It is the admitted fact that till 31.03.2015, the service recipients were to discharge the liability to the extent of 75% of the total value of service received and 25% thereof was to be paid by the service provider. It is also an admitted fact that the appellant and his service provider were discharging their liability throughout - The change in the present case came into effect from 01.04.2015. The period of demand is April 2015 to December 2015. The pleaded inadvertence of the appellant that the amendment was not in the notice of the appellant cannot be ruled out. Otherwise also, there is no apparent evidence on record to prove the alleged intention of the appellant to not to discharge his liability. It is apparent from the record that the appellant has been impressing upon the challans for the month of April 2015 to December 2015, about payment of 25% of the value of service received by the service provider during said period itself but the authorities below have been silent about the said evidences. Revenue neutrality - reduction in quantum of penalty - extended period of limitation - Held that:- There is no apparent intention of the appellant to evade the payment of duty. No evidence Department could produce to prove the same despite it was the Department’s own onus. In absence of the discharge of their onus the silence of the authorities below about the documents reflecting 100% payment is sufficient to hold that Department has wrongly invoked the extended period of limitation - The period of demand is w.e.f. April 2015 to December 2015. The impugned Show Cause Notice is dated 31.03.2017. Since the proviso to Section 73 Central Excise Act, 1944 was not available to the Department as discussed, the Show Cause Notice is definitely barred by time. Appeal allowed - decided in favor of appellant.
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