9911796707
TMI Blog2023 (1) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner and rejected the appellant's appeal. 2. The appellant provides service of transport of goods by road and is registered with the Service Tax Department and has been paying service tax. During audit of the records of the appellant it appeared that the appellant had been working as a consignment agent of various oil manufacturers and had been receiving commission for such services. Additionally, it appeared that the appellant was also receiving freight charges, loading and unloading expenses, postage and telecom charges etc. It appeared to the Department that these services of the appellant were classifiable under the head "Clearing and Forwarding Agent" service under Section 65 (105) (j) of the Finance Act, 1994 and the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alance sheets which were examined by the audit party. She places reliance on the following case laws :- (i) Commissioner of Central Excise, Hyderabad versus Chemphar Drugs and Liniments [1989 (40) E.L.T. 276 (S.C.)] (ii) Padmini Products versus Collector of Central Excise [1989 (43) E.L.T. 195] (iii) PVT Ltd. versus Commissioner of Service Tax, New Delhi [2021 GSTL 435 (Del.)] (b) The services of a consignment agent do not fall under the category of Clearing and Forwarding Agent service under Section 65 (105) (j). The appellant used to receive goods and forward the same to other parties on the instruction of the principal. The appellant was neither receiving any goods nor clearing them from its premises. Reliance was placed on the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary to examine the relevant portion of Section 73, which reads as follows :- "SECTION 73. Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded - (1) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any service tax has not been levied or paid or has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 68 & 69 of the Finance Act, 1994 read with Rule 4 & 6 of the Service Tax Rules, 1994 with intent to evade payment of service tax. Therefore, for recovery of service tax not paid by the assessee, extended period under proviso to Section 73 (1) of the Finance Act, 1994 is invokable. The interest on the service tax amount not paid is also recoverable under Section 75 of the Finance Act, 1994". 11. The reason for invoking extended period of limitation given by the Assistant Commissioner in the order-in-original is as follows :- "I find that, if the audit has not been conducted it would not have come to the knowledge of the department that the assessee had not deposited the service tax correctly. Therefore, the assessee had willfully supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xable services. Firstly, we find that detection of any escapement of service tax during audit is not a ground on which extended period of limitation as per section 73. Neither does the fact that the audit was conducted prove that the appellant suppressed, let alone willfully suppressed taxable services. On this ground itself, the demand invoking the extended period of limitation needs to be set aside. 14. Secondly, it is wrong to say that had the audit not being conducted the escapement of service tax would not have come to notice. Section 69 of the Finance Act, 1994 requires every person who is liable to pay service tax to obtain registration which the appellant did. Section 70 requires every such person to self-assess the service tax du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the Jurisdictional Superintendent of Central Excise with whom the return is filed. In this case, the entire basis on which the audit raised the objection was in the books of accounts and documents of the appellant. The officer with whom the returns were filed could also have equally gone through the returns, called for the books and accounts and detected the alleged non-payment of service tax. If the audit detected escapement of service tax, it does not establish, in the factual matrix of this case, that the assessee has indulged in fraud or collusion or wilful mis-statement or suppression of facts or violation of legal praising with an intent to evade payment of service tax. It only establishes that the officer tasked with the best j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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