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2024 (3) TMI 456 - AT - Service TaxInvocation of extended period of limitation - shortage in payment of service tax - appellants did not pay service tax properly and further, not made proper disclosures to the department - construction of Subansiri Dam/Tunnel for the period 2012-13 - HELD THAT:- The appellant was under the impression that they had already suffered the service tax by way of deduction at source, by the main contractor on the said activity. Thus, there does not appear to be any deliberate attempt or intention on the part of the appellant to evade service tax in the facts of the case. Demand with respect to construction of elevated structure for BMRCL - HELD THAT:- Admittedly, when the project was awarded to the appellant, the same was exempt from service tax under Notification No. 25/2012-ST. During execution of project, the said exemption was withdrawn w.e.f. 01.03.2016. Thereafter, admittedly, this appellant was pursuing with the Principal BMRCL for release of funds towards payment of service tax, which took some time and upon release of such funds, admittedly, appellant had deposited such tax with interest. Hence, SCN is bad and is hit by the provisions of Sec 73(3) of the Finance Act, which provides that in such cases where tax and interest are paid without dispute, no SCN needs to be issued. Payment of service tax under RCM on Royalty paid to State Government - HELD THAT:- Evidently, the matter is sub-judice before the Apex Court (9 Judges Bench). Whereas, earlier the 7 Judges Bench of the Apex Court in the case of India Cements Ltd & Others vs State of Tamil Nadu & Others [1989 (10) TMI 53 - SUPREME COURT] have held that Royalty is Tax and set aside the cess imposed on such Royalty. Admittedly, no service tax is leviable on the amount of tax. In this view of the matter, the demand is only by change of opinion or interpretation of Statute. There is no case of fraud or mis-statement, etc., on the part of the appellant. The issue involved is wholly interpretational in nature. In this view of the matter, we hold that the SCN issued invoking extended period of limitation is bad - impugned order set aside - appeal allowed.
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