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2024 (5) TMI 890 - CESTAT NEW DELHITaxability - appellant has provided taxable services against consideration whereupon TDS has also been deducted by the service receivers - exemption under Mega Exemption N/N. 25/2012- ST dated 20.06.2012 - suppression of facts or not - extended period of limitation - penalty - HELD THAT:- The work of Schedule-A are in the nature of original works whereas those under Schedule-B are the works related to alterations. It is the original work which is exempted vide Entry No. 14(a) of Notification No. 25/2012-ST dated 20.06.2012. Hence, the demand with respect to the work orders mentioned in Schedule-A has rightly been dropped. With respect to Schedule-B work those are not the original work, the exemption from tax under above said Entry No. 14(a) is not available. However, it is not in dispute that the services with respect to Schedule-B work orders are provided to Indian Railways - thus irrespective the work of Schedule-B was not of original nature but was covered under the aforesaid exemption clause. Resultantly, it stands clear that the appellant had no tax liability even with respect to the service, the demand whereto has been confirmed in the order under challenge. Extended period of Limitation - suppression of facts or not - HELD THAT:- Though the appellant was rendering a service in the nature of Works Contract Service but the activity being in the nature of original work that too being provided to the Railways. There remains no tax liability with the appellant even with respect to non-original work as being provided to the Indian Railways. The appellant was not liable to discharge any tax. Hence, not getting itself registered under Service Tax Department and non-filing of service tax return is wrongly held to be an act of suppression on part of the appellant - Otherwise also it is not the mere act of the suppression which entitles department to invoke the extended period while issuing show cause notice and to impose the penalty. The alleged act has to be proved to be a positive act done by the assessee that too with an intent to evade tax - The department is therefore held to have wrongly invoked the extended period. Penalty - HELD THAT:- Since there is no intent to evade the payment, no question arises of any penalty under Section 78. Since the appellant is held to have been rendering exempted services, question of any penalty under Section 77 is also absolutely redundant. Appeal allowed.
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