TMI Blog2019 (8) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order only for the reason that facts came to the notice of the Department only when an audit was carried out and that the appellant had also not mentioned the amount in the ST-3 returns - the appellant could have been under a bona fide belief that neither service tax was required to be collected from the main contractor nor was it required to be deposited with the Government. Such being the position, the Commissioner fell in error in invoking the extended period of limitation. The matter, therefore, needs to be remitted to the Commissioner to calculate the service tax liability for the period prescribed under Section 73(1) of the Act without invoking the proviso that seeks to extend the period of limitation - Appeal allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 and 2010-2011 and the Trial Balance Sheet for the financial year 2011-2012 (up to December, 2011) that the appellant as a sub-contractor had received payments from the main contractors but had not paid service tax, even though it was required to pay the service tax in terms of the Circular dated 4 January, 2008 issued by the Central Board of Excise and Customs. The extended period of limitation was also invoked. Paragraph-14 of the Show Cause Notice which deals with the aspect of limitation is reproduced below: 14. Further Noticee has never disclosed the facts to the department with intent to evade payment of Service Tax deliberately. The said facts were detected during the course of audit and it came to the notice that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther stated that there would be no loss to the revenue since even if the appellant had paid the service tax, credit would have been taken by the main contractors and then payment of service tax by the appellant would have resulted in double taxation. Regarding the invocation of the extended period of limitation, the appellant pointed out that the appellant had been regularly paying the service tax in time but for the works under the sub contract, it had not paid the service tax for a bona fide reason that the main contractors were not only required to pay the service tax, but had actually paid the service tax. It was, therefore, submitted that there was no suppression of facts with an intention to evade payment of service tax. The appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-contractor because of various decisions of Division Benches of the Tribunal and it is only when the reference was answered by a Larger Bench that the position of law became clear. It is, therefore, his submission that suppression was neither wilful nor with an intent to evade payment of service tax, more particularly, when the main contractor in terms of the clauses of the works order had discharged the service tax liability for the entire value of work, including the work under the sub-contract. The submission is that even though this issue was specifically raised by the appellant in reply to the Show Cause Notice, but still there is no consideration at all in the impugned order and the Commissioner appeared to have been swayed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of duty as is the requirement of Section 73(1) of the Act. There were conflicting decisions of the Tribunal in this regard and it is for this reason that the matter had been referred to a Larger Bench of the Tribunal. In fact, under the terms of work order also it was the main contractor who had to discharge the service tax liability and the appellant had also not collected any service tax from the main contractors. This apart, it is not in dispute that the main contractors had actually deposited the service tax. The Commissioner failed to examine the reply filed by the appellant on this issue and has invoked the extended period of limitation in the impugned order only for the reason that facts came to the notice of the Department o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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