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TMI Blog2019 (2) TMI 1493X X X X Extracts X X X X X X X X Extracts X X X X ..... ng or Installation" Service as defined under Section 65(39a) of the Finance Act, 1994. They were regularly paying service tax and filing the ST-3 return. The Department conducted audit of the accounts of the appellant during period 22 to 24 May, 2008. During the course of audit, it was observed that the appellant was receiving certain payments in advance from the customer to whom the services were to be rendered. Such advance received was adjusted in running bills. The audit team was of the view that in terms of the amended provisions of Section 67 read with Rule 6 of the Service Tax Rules, 1994, the appellant was required to pay service tax on the amounts received in advance, within the time limit prescribed under Rule 6 ibid. Since during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No. Category Amount of advance (Rs.) Service Tax involved (Rs.) (i) Where the assessee had already paid service tax 9,28,48,599/- 1,14,76,087/- (ii) Service tax liability on crane advance under 'supply of tangible goods' service which was although initially contested by the assessee but later on found paid under 'erection, commissioning and installation' service. 1,32,75,000/- 16,40,790/- (iii) Service tax liability on fabrication work where tax liability is contested by the assessee. 43,83,688/- 5,41,824/- TOTAL 11,05,07,287/- 1,36,58,701/- 3. As per the result of reconciliation undertaken, the adjudicating authority confirmed the demand of service tax amounting to Rs. 1,36,58,701/-. He further ordered for appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he service tax net only w.e.f. 16 May, 2008 under the category of supply of tangible goods. As such, no service tax liability arose for this amount of the advance collected. (iii) Learned Counsel submitted that in addition to above, an amount of Rs. 1,84,26,930/- was received as advance towards the activity of unloading machinery /equipment as well as iron and steel plates with the help of contract labour at site. This activity, he claimed, was also not liable to service tax, since it was carried out by making use of manpower in their individual capacity. (iv) He, however, submitted that out of the total advance, an amount of Rs. 3,58,40,005/- was towards mobilisation advance and was liable for payment of service tax. He, submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted out earlier) was taken note of as filed on 23 July, 2008 and accordingly, the show cause notice issued on 27 July, 2009 for demanding interest for the period January, 2007 to March, 2008 was held as time barred since it has been issued beyond the period of one year. 6. Learned Representative for the Department justified the impugned order. He emphasised the observations of the adjudicating authority that the show cause notice was within time since suppression of facts and figures was resorted to by the appellant. He submitted that the revised return in the form ST-3 return was filed by the appellant only after the detection of the failure on the part of the appellant to pay tax on the advances received. 7. We have heard both sides a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l can be decided on the plea of limitation. We have perused the record. The original ST-3 return was filed on 25 April, 2008 and the revised return filed on 23 July, 2008. These returns are filed for the period October, 2007 to March, 2008. In the revised return we note that the amount of advance received is included. It is noted that the amount of advance to the extent of Rs. 6,64,41,935/- has been reflected in the revised return. 11. We have also considered the decision of the Tribunal in appellant's own case referred above in which the revised return filed on 23 July, 2008 was the subject matter of dispute. In this case, the Tribunal examined the justification for the allegation of suppression in respect of show cause notice issued on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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