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2024 (2) TMI 437 - CESTAT KOLKATALevy of service tax - Business Auxiliary Service - imposition of penalty under Section 78 of the Finance Act, 1994 - Transportation, Bundling and Feeding of Bamboo - Unloading of Bamboo from Railway Wagons and shifting from Railway Siding to Bamboo Yard - Coal Ash Transportation, unloading/shifting of SSP/Ind. Salt from Railway Wagons to go-down - invocation of extended period of limitation - HELD THAT:- The facts are not in dispute that for the period 1st October, 2008 to 30th September, 2013, the demand has been raised against the appellant under the category of Business Auxiliary Service by invoking extended period of limitation through show-cause notice dated 22.10.2013. It is also a fact on record that for the similar activity, another show-cause notice was issued to the sister concern of the appellant, namely, M/s Subham Syndicate to demand service tax under the category of Cargo Handling Service, which shows that the respondent was under confusion whether the activity undertaken by the appellant falls under the category of Cargo Handling Service or Business Auxiliary Service. In that circumstances, when the Revenue itself is not definite under which category the activity undertaken falls, the extended period of limitation is not invokable. Moreover, the activity undertaken by the appellant was known to the Department much prior to issuance of show-cause notice i.e. 20.06.2010, when Revenue issued a letter to the appellant - But no proceedings were initiated against the appellant - the extended period of limitation is not invokable. Further, the demand of service tax has been raised against the appellant under the category of Business Auxiliary Service and no particular clause of Business Auxiliary Service has been charged against the appellant. Therefore, the show-cause notice is defective - Further, post 01.07.2012, the negative list regime came into force and all the negative regime, the appellant is liable to pay service tax on the activity undertaken by them, but no demand has been made from the appellant under the negative list regime - for the period post 01.07.2012, the demand is not sustainable. The demand prior to 01.07.2012 is barred by limitation and post 01.07.2012 is not maintainable as no demand has been made under negative list regime - the impugned order is set aside - Appeal allowed.
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