TMI Blog2017 (4) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... - decided against Revenue. - ST/30819/2016 & ST/CROSS/30154/2017 - A/30384/2017 - Dated:- 23-2-2017 - Ms. Sulekha Beevi, Member(Judicial) Shri Arun Kumar, Deputy Commissioner (AR) for the Appellant. Shri Ch. Nageswara Rao, Consultant for the Respondent. [Order per: Sulekha Beevi, C.S.] 1. The above appeal is filed by the department against the order passed by Commissioner (Appeals) who set aside the demand of interest and penalties imposed. 2. The respondents have registered with the Service Tax Department for providing Cleaning and Manpower Recruitment services. They were issued a show cause notice alleging the short payment of service tax on two grounds. Firstly, that they had wrongly availed the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6(197)ELT 465 (SC)] and Jubilant Life Sciences [2013(29)STR 529 (Tri-Del)]. 4. On merits, the Ld. AR submitted that the respondent has claimed abatement of the value of the materials used for providing cleaning service in terms of notification No.12/2003. The Commissioner (Appeals) relied upon various judgements to hold that since the materials have been used for providing cleaning service, respondent is eligible for abatement. The Ld. AR pointed out that the said abatement would be eligible only if the material is sold with proof of payment of VAT on the subject goods. That when materials/goods are used for cleaning there is no sale and therefore, the Commissioner (Appeals) has erred in holding that respondents are eligible for abatem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gular. The intimation regarding these objections in second audit was issued to the appellant only on 31.01.2011. The amount stated in the objection was paid by respondent. Later, a third audit for the period October 2009 to October 2010 was conducted on 06.12.2010 to 08.12.2010. The audit party raised objection with regard to two allegations and required the respondents to pay demand of ₹ 3,72,989/-. The amount was immediately paid by the respondent during the audit itself. Thereafter, a show cause notice has been issued by department invoking the extended period of limitation alleging suppression of facts. That respondents have not suppressed any facts. There is no evidence to establish that the respondent has suppressed facts. The d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after, issued by department invoking the extended period of limitation by alleging suppression of facts. The Ld. AR has relied upon the judgement in the case of Chemfab Alkalies Ltd. Vs. CCE, Pondicherry [2010(251) ELT 264 (Tri.-Chennai)] to canvass the argument that even though audit is conducted, it would not render show cause notice time barred as the conduct of audit cannot be construed to put the department in the know how of short payment of tax. The facts before me are entirely different from the judgement laid in the case of Chemfab Alkalies Ltd. Vs. CCE, Pondicherry [2010(251) ELT 264 (Tri.-Chennai)] and therefore distinguishable. In the case before me, it is not a mere visit by audit party. There were three audits conducte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DURING NOV. 2012 OCTOBER 2010 TO MARCH 2012 ABATEMENT NOT TAKEN - - - Further, it is also respectfully submitted that the above factual position was submitted to Group-II of Service Tax Cell, Hyderabad-II Commissionerate vide letter dated 09.04.2012 which was acknowledged by the Superintendent on 09.04.2012 (copy of the letter enclosed herewith vide Annexure-A to the reply show cause notice for ready reference). From the above factual position it is proved that the service provider have not suppressed any information towards availment of abatement on the materials used in the cleaning services for the period 2007-08 to 2009-10 (upto September) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of service tax is definitely unsustainable. In my view the Commissioner (Appeals) has rightly said that the demand is time barred. The relevant discussions of Commissioner (Appeals) is reproduced below: 5. I have carefully considered the documents and the submissions. The demand has been forcefully contested on limitation, primarily on the ground that the previous audit interventions accepted the abatement in respect of the material portion, and that the department was aware of the valuation pattern. I have carefully considered this contention and find that the appellant raised the very same ground before the lower authority, as recorded at para 7 and 8 of the impugned order, and addressed at Para 12 ibidem. I find that the Positiv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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