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2015 (9) TMI 787 - CESTAT MUMBAI

2015 (9) TMI 787 - CESTAT MUMBAI - 2015 (40) S.T.R. 490 (Tri. - Mumbai) - Extended period of limitation - suppression of facts - assessee has charged service tax on invoice raised only to those clients who agreed to pay service tax - Held that:- Revenue authority cannot invoke the extended period of limitation, when the records of the assessee were audited by the officers once but did not find any short payment from records. The 2nd audit party, doing the audit of same period or over lapping per .....

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avindran This appeal is directed against order-in-appeal No. PI/RKS/25/2011 dated 23.02.2011. 2. Briefly stated the facts of the case are that, the appellants are holders of Service Tax Registration No. AABCT5507BST001 and are engaged in providing installation and Commissioning of Plant and Equipment' services to various clients. During the course of audit of the records of the appellants, it was observed that they had rendered services of Installation Commissioning of Plant and Equipment .....

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e tax liability worked out by the Audit amount to ₹ 46,62,677/-. A Show Cause Notice dated 8-6-2009 was therefore, issued to the appellants asking them to show cause as to why service tax amounting to Rs- 45,97,818/- plus Education cess of ₹ 64,859/- (totally amounting to ₹ 46,62,677/-) on the taxable services provided by them during the period 1-7-2003 to September 2005, should not be recovered under the provisions of Section 73 (1) read with Section 68 of the Finance Act, 199 .....

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3 to 31.3.2004 on ground of limitation or also the demand of interest, imposed penalties. On an appeal filed by the appellant, authority rejected the contention raised by the appellant and upheld the order-in-original. 4. Learned counsel would take us through the case records in detail. After submissions on merits, he would submit that the entire issue is hit by limitation in as much, the records of the appellant were audited by the audit section in 2006 and no objections were raised as to the f .....

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tended period. He would placed reliance on the Judgment of Hon'ble High Court of Karnataka in the case of MTR Foods Ltd. 2012 (282) E.L.T. 196. 6. Learned Departmental Representative would submit that the extended period has been correctly invoked as the appellant collected the service tax liability and failed paying the tax on the entire amount but for the earlier period, withholders the service tax liability on entire amount received by them. 7. We have considered the submissions made by b .....

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2005, which appellant himself discharged and reflected in the return filed with the department. It is the case of the Revenue that appellant has undervalued the services hence service tax liability arises. 9. We find that the show cause notice has invoked the extended period for the demand of service tax liability. It is noticed by us that the records of appellants audited by the audit party of the Revenue in 2006 and vide audited report no 288/2006-07, for a period on 01/04/2003 to 31/12/2006, .....

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is to be set aside on the ground on limitation only. Revenue authority cannot invoke the extended period of limitation, when the records of the assessee were audited by the officers once but did not find any short payment from records. The 2nd audit party, doing the audit of same period or over lapping period, cannot allege that appellant has miss-stated (sic) or suppressed the facts from the departments. We find that the Hon'ble High Court of Bombay in the case of Rajkumar Forge Ltd. 2010 ( .....

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thorities that they were debiting ₹ 80,000/at the rate of ₹ 1,000/per Metric Tonne and that they were also debiting differential duty totaling to ₹ 63,318/in respect of Mill Rollers which was debited under PLA dated 3rd September 1993. Therefore, the Petitioners vide their letter dated 5th July 1995 have informed the Superintendent of the Respondents that they had debited ₹ 2,08,760/against the Scrap Generation at Subcontractor end, where material is sent for processing u .....

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