TMI Blog2022 (4) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the cleaning service, the demand of service tax sought to confirmed against the appellant on the basis of gross value of services provided by the appellant as shown in the balance sheet. The service tax which has already been paid by the appellant has been reduced and the balance amount of service tax demand has been proposed. Time Limitation - HELD THAT:- The demand of service tax is barred by limitation as the service rendered by the appellant were well known to the Department in earlier proceedings, therefore, the subsequent show cause notice cannot be issued by invoking extended period of limitation On merit also, the fact is noted that no service tax was payable on cleaning services in terms of Sl. No. 12 of Notification No. 25/2012 ST dated 20 June 2012 wherein the services provided to the Government, a local authority or a governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration to Sl. No. 25A, wherein services provided to Government, a local authority or a governmental authority by way of carrying out any activity in relation to any function ordinarily entrust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... April 2009 to March 2013 by invoking extended period of limitation. On 29.01.2016, the show cause notice was adjudicated and confirming the demand of service tax alongwith interest and penalties were also imposed on both the appellants. Thereafter, on 01.02.2016 in response to an enquiry for the recurring period, the appellant submitted the balance sheet for the period 2013-2014 and 2014-2015 and other relevant documents. On 06.05.2016, the appellant filed an appeal against the order dated 29.01.2016 before this Tribunal. On 11.09.2017 the audit through a letter asked the appellant to submit documents for conducting the audit for the financial year 2012- 2013 to 2016-2017. The appellant submitted the relevant documents to the audit team, thereafter on 28.12.2017, the officers of DGGSTI Zonal office, Lucknow searched the premises of the appellant and made an allegation that the appellant had short paid service tax. The DGGSTI issued another show cause notice to the appellant for the period 2013-2014 to 2016-2017 for recovery of service tax amounting to ₹ 2,84,72,839/- by invoking extended period of limitation on 15.10.2018. On 28.09.2018, this Tribunal vide final order No. 72 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of Section 73A of the Finance Act, 1994. For this contention, he took the support of the order this Tribunal in the case of M/s Fusion India INC versus Commissioner of Central Excise, Service Tax, Lucknow in appeal No. ST/51697 of 2015 wherein vide Final order No. 72390 of 2018 dated 20.09.2018, this Tribunal held that the service tax was payable by the appellant even the penalties cannot be imposed by invoking the provisions under Section 73(1)of the Finance Act, 1994 and the said provisions cannot be invoked in this case, therefore, the impugned order is to be set aside. 4. On the other hand, learned Authorized Representative during the course of arguments reiterates that the Annexure I and II to the show cause notice clearly states that the appellant is engaged in the activity of manpower services. Therefore, he submits that the appellant is providing taxable service namely service of manpower, therefore, the demand is rightly confirmed against the appellant. 5. Heard the parties considered the submissions and examined the records. 6. On examining of one of the agreements, between the appellant and the Medical University, Greater Noida. The nature of the work was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3,44,37,053 2014-15 2,66,81,551 1,55,50,872 4,22,32,423 4,34,12,497 2015-16 5,81,42,120 2,93,53,989 8,76,96,109 8,63,13,640 2016-17 8,47,78,647 4,10,99,805 12,58,78,452 12,23,96,139 Total 19,92,39,803 9,23,29,029 29,15,68,832 3.3 And whereas, the Party has filed the statutory half yearly ST-3 returns for the period from April-2013 to March-2017 and has shown their gross assessable/taxable value and Service Tax liability as paid by them, as shown below :- (Amount in Rs.) Period of Return Due date of Filing of Returns Actual date of Filing of Return Total Value of services as mentioned in ST-3 Returns Amount of Service Tax including all cess Apr 2013 Sep 2013 25.10.2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue in their ST-3 returns and wrongly assessed the service tax due on the taxable service namely manpower recruitment/supply agency service cleaning services provided by them. From the information received from service recipients of the Party and the financial documents provided by the Party, it appears that the whole amount shown in balance-sheet as revenue from operation is taxable and the service tax liability with applicable rate is calculated on the basis of the receipt ledger, Balance sheet and information received from the service recipients as given below :- Sl. No. Financial Year Assessable Value (in Rs.) Service Tax at applicable rate (in Rs.) 1 2013-14 3,57,61,848 44,20,164 2 2014-15 4,22,32,423 52,19,927 3 2015-16 8,76,96,109 1,23,05,087 4 2016-17 12,58,78,452 1,88,05,767 Grand Total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2011-12 of the party it was observed that income from Services like Bio Medical Waste Management, Cleaning Service, Man Power Supply Services, Para Medical Mess Management Services have been shown but the ST-3 returns of the same period show payment of Service Tax in respect of Man Power Recruitment/Supply Agency Service only. In this regard Shri Tiwari explained in his statement dated 15.09.2014 that due to clerical error of their Accountant, total payment has been shown against only one head i.e. Man Power recruitment Supply/Agency in their ST-3 returns, though income from three services like Manpower, Cleaning Mess Management has been shown separately in balance Sheet. Regarding non- payment of Service Tax in respect of Para Medical Services Disposal of Biomedical waste even after obtaining registration Certificate, Shri Tiwari stated that as SGPGIMS Extra Divisional Hospital, RDSO were the recipient of these two services, so, they were not paying Service Tax on these services being exempted from payment of service tax. Whereas, on being asked to explain the exact nature of Para Medical Services, Shri Tiwari stated Para Medical Services in their case is nothin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Grand Total 12648074 13476398 20097808 16866327 And after comparing the income shown in the Balance Sheets with the Service Tax paid as shown in their ST-3 Returns for the period April 2011 to Sept 2011 (RUD-6), Oct 2011 to Mar 2012 (RUD-7) and April 12 to June 12(RUD-8), July 2012 to Sept 2012(RUD-9), Oct 2012 to Mar 2013(RUD-10), service tax not paid/short paid by the party has been calculated and is as follows:- CHART-II (Amount in Rs.) Year Gross receipt as per balance sheet Rate of S. Tax ST payable ST paid as per Challan/ST-3 ST. short paid 2009-10 12648074 10.30% 1302752 0 1302752 2010-11 13476398 10.30% 1388069 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of any service and whether any abatement from assessable value was available. We find that without undertaking any examination of the activity rendered by the appellant, on the basis of income statement demand was raised. We further note that appellant had contended before Original Authority that cleaning services were provided to Government Hospital and such cleaning services were if provided to organizations which are not commercial in nature were not taxable for the period involved was also not accepted by Original Authority. Further we find that some of the services were rendered to Reserve Bank Of India and taxable services provided to Reserve Bank Of India are exempted through Notification No.22/2006-ST dated 31.05.2006. The Original Authority confirmed the demand of service tax on the services provided to Reserve Bank Of India. Since there was no scrutiny of the receipt by the appellant for issue of said show cause notice we do not find the impugned show cause notice to be sustainable law. The same resulted in proceedings to be vitiated . 13. We find that for the earlier period, an audit was conducted against the appellant and on perusal of the balance sheet, the dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough various letters issued to the Appellant and on August 13, 2007 the Appellant explained that the liability to pay service tax was exempted. However, the first show cause notice dated October 28, 2009 for the period November 2005 to January 2008 was issued to the Appellant demanding service tax on the services which the Appellant claimed had been exempted from payment of service tax. The demand was confirmed by the adjudicating authority and the Appeal filed by the Appellant before the Commissioner (Appeals) was also dismissed. A second show cause notice dated September 29, 2011 was thereafter issued to the Appellant for the period 2006-07 to 2009-10. The demand made in the second show cause notice was also confirmed, though the Commissioner (Appeals) did reduce the demand 17. It needs to be noted that the extended period of limitation was sought to be invoked in the first and the second show cause notices. When the matter came up before the Tribunal, the issue regarding invocation of the limitation period was raised by the Appellant. The Tribunal accepted this contention and held that since the Revenue had full knowledge of the activities of the Appellant since August 13, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extended period of limitation could not have been invoked since there can be no suppression of facts when a show cause notice had been issued by the Department on the basis of certain set of facts is followed by another show cause notice for a later period on the same set of facts. The contention advanced was that the Department was fully aware of the facts even at the time of issuance of first show cause notice. The Supreme Court disposed of the Appeals on the point of limitations only and the observations are as follows : 8. Without going into the question regarding Classification and marketability and leaving the same open, we intend to dispose of the appeals on the point of limitation only. This Court in the case of P B Pharmaceuticals (P) Ltd. v. Collector of Central Excise reported in (2003) 3 SCC 599 = 2003 (153) E.L.T. 14 (S.C.) has taken the view that in a case in which a show cause notice has been issued for the earlier period on certain set of facts, then, on the same set of facts another SCN based on the same/similar set of facts invoking the extended period of limitation on the plea of suppression of facts by the assessee cannot be issued as the facts were alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this judgment was again followed in the case of Hyderabad Polymers (P) Ltd. v. Commissioner of Central Excise, Hyderabad reported in 2004 (166) E.L.T. 151 (S.C.). It was observed in para 6 : .......... On the ratio laid down in this judgment it must be held that once the earlier Show Cause Notice, on similar issue has been dropped, it can no longer be said that there is any suppression. The extended period of limitation would thus not be available. We are unable to accept the submission that earlier Show Cause Notice was for a subsequent period and/or it cannot be taken into consideration as it is not known when that Show Cause Notice was dropped. If the Department wanted to take up such contentions it is for them to show that that Show Cause Notice was not relevant and was not applicable. The Department has not brought any of those facts on record. Therefore, the Department cannot now urge that findings of the Collector that that Show Cause Notice was on a similar issue and for an identical amount is not correct. 9 . Allegation of suppression of facts against the appellant cannot be sustained. When the first SCN was issued all the relevant facts were in the knowledge of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined by the Additional Director General to arrive at a conclusion as to whether the extended period of limitation could be invoked. 23. What also needs to be noted is that the amount charged for the exempted service that were provided by the Appellant was being repeatedly shown by the Appellant in the ST-3 returns filed in 2014 and 2015, and it is not a case where the Appellant had suppressed any information from the Department regarding the amount it had charged for the exempted services. It cannot, therefore, be urged that the Appellant had suppressed information or facts from the Department. 24. What is further important to note is that on July 05, 2016, the Department also issued a notice to the Appellant for conducting an audit for the period 2012-13 to 2015-16. The Appellant was required to furnish all the relevant documents, including documents relating to details of the exempted services. The audit report does not mention that the Appellant had provided any service which was not exempted under the various Notifications and the audit report was also approved by the Deputy Commissioner (Audit). 25. In regard to the audit report, the Additional Director General ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t did not raise any query in respect of the payment of the service tax as alleged in the show cause notice. The relevant portion of the decision is reproduced below : 10 . In our view the entire demand 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 misstated 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 (262) E.L.T. 155 (Bom.) held in paragraph No. 13. 13. It is an undisputed fact that insofar as the petitioners are concerned, audit of the petitioners factory was carried out on three dates, i.e., 6th September, 1993, First November, 1995 and 2nd September, 1994. The petitioners vide their letter dated 6th September, 1993 have recorded the visit of the audit party and have also replied to the audit objections raised by the said audit party in respect of scrap generated and have informed the auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o paid the service tax thereon. 15. On merit also, we take note of the fact that no service tax was payable on cleaning services in terms of Sl. No. 12 of Notification No. 25/2012 ST dated 20 June 2012 wherein the services provided to the Government, a local authority or a governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration to Sl. No. 25A, wherein services provided to Government, a local authority or a governmental authority by way of carrying out any activity in relation to any function ordinarily entrusted to a municipality in relation to water supply, public health, sanitation conservancy, solid waste management or slum improvement and upgradation are exempt from payment of service tax . As the cleaning service has been exempt from payment of service tax in terms of the negative list to the Notification No. 25/2012- ST dated 20 June 2012, therefore, the appellant is not liable to pay service tax on cleaning services. If the same is excluded from the taxable service quantify by the Adjudicating Authority on the basis of gross value of services shown by the appellant i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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