TMI Blog2023 (6) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... stained. When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. Thus there was no suppression of facts on the part of the assessee/appellant - the above ruling squarely applies to the facts of the case on hand. It is also a fact borne on record that other than the audit observations, no other material facts have been brought on record by the Revenue. Hence, the allegation of suppression of facts made by the Revenue should fail and therefore, the impugned orders cannot sustain. Merits of the case - HELD THAT:- The initial work essentially required the formation of service roads, which was essential for carrying the men and material / equipment and other accessories to the site of work and only thereafter could the clearance of jungle in and around the GTS level get started - the appellant did construct road, which was clearly essential in order to reach the place of work. Further, we also note that the contract belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act billing under the heading other income for the services provided by the appellant towards site formation and clearance services on behalf of M/s. Surendra Infrastructure Pvt. Ltd. at Port Blair, Andaman and Nicobar Islands, for which it appeared to the Revenue that the appellant was liable to pay Service Tax. 3.1 The above resulted in the issuance of Show Cause Notices dated 05.08.2010 and 06.03.2012 proposing to recover Service Tax of Rs.21,83,616/- [Rs.1,76,936/- (supply of tangible goods) + Rs.20,06,680/- (site formation and clearance)] and Rs.74,58,305/- [Rs.1,95,350/- (GTA service) + Rs.6,85,355/- (supply of tangible goods) + Rs.1,52,928/- (management, maintenance or repair service) +Rs.64,24,672/- (site formation and clearance)] respectively, inter alia alleging that the appellant had wilfully suppressed the value of freight paid, hire charges, warranty charges and site formation and clearance services thereby invoking the extended period of limitation under Section 73(1) of the Finance Act, 1994, apart from applicable interest under Section 75 ibid. and also penalty under Section 78 ibid. 3.2 It appears that the appellant denied any Service Tax liability, as pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struction of buildings and other related civil and electrical works, and the value of the said contract was Rs.7.76 crores. 3.4 It appears that M/s. SIPL sub-contracted the earth work and construction of roads up to the stage of blacktopping to the appellant and the estimated contract value was Rs.2.90 crores. The rate for excavation, inter-carting, self-cutting and dozing was finalized at Rs.63/- per m3 and the bill of quantity indicated an approximate quantity of Rs.2.50 lakhs m3. The scope of work included site formation and clearance of the dense forest area and formation of road in the cleared area from ground level to technical building, DF Antenna, ESM Antenna and staff quarters at the top, which resulted in making a service road for transporting the equipment to the GTS level and clearing the jungle in and around the GTS level. 3.5 It appears that the appellant had pleaded that since the Andaman was known for heavy rains, protective measures like benching and trenching to prevent erosion and caving of earth as well as prevent boulders rolling into the benches / neighbouring lands, were also provided. 3.6 M/s. SIPL simultaneously constructed RCC retaining walls alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carried out by the appellant in the capacity of a sub-contractor was for the Indian Navy, which fact could never be suppressed and secondly, the appellant had believed in good faith that the construction work involved even constructing Kaccha Road for facilitating the movement of vehicles in the dense forest area, therefore, the same being site formation and clearance service in relation to construction of road as well, was eligible for exemption under Notification No. 17/2005 ibid. 6.2 Without prejudice to the above contention, he would also submit as under: - (i) On the same facts, the Joint Commissioner had also issued Show Cause Notice dated 05.08.2010 demanding Service Tax for the period 2008-09 based on audit objections. (ii) The second Show Cause Notice dated 06.03.2012 which thereafter culminated in the impugned Order-in-Original, was also issued based on the very same audit objection covering the same period 2008-09 and 2009-10, question of suppression does not arise at all and hence, the second Show Cause Notice in question is clearly time-barred. (iii) Due to landslide at the site, there was a prohibitory order issued by the Tehsildar against carrying on an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , kaccha road, etc., were only incidental to the contract. 7.2 He would also submit that the appellant had wilfully suppressed the receipt of the service amount of Rs.5,61,16,701/- for the periods 2008-09 and 2009-10 for providing site formation and clearance service, which attracted Service Tax and therefore, proviso to Section 73(1) of the Finance Act, 1994 was rightly invoked in the Show Cause Notice. 8. We have considered the rival contentions and we have also gone through the documents placed on record. 9. After hearing both sides, we find that the following issues are to be decided by us: - (1) Whether the appellant was entitled to the benefit of exemption under Notification No. 17/2005-S.T. dated 07.06.2005? (2) Whether the demand proposed and confirmed later, is barred by limitation? (3) Whether the tax liability on the amount claimed to have not been received by the appellant is correct? 10.1 A Show Cause Notice No. 49/2010 dated 05.08.2010 came to be issued by the Joint Commissioner, Puducherry and a perusal of the same reveals the following: - 6. On further verification of the documents submitted by M/s. VIEPL it was noticed that M/s. VIEPL was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d an appeal before this forum [ST/41055/2013] and hence, as per the impugned order of the Commissioner (Appeals), the appeal before the first appellate authority stood dismissed for non-compliance, which has given rise to this appeal. 11.1 Further, it appears from the acknowledgement in Form ST-4 that the first appeal was filed on 30.01.2012 and pending disposal of the above first appeal, the Revenue appears to have jumped the gun by issuing a second Show Cause Notice No. 14/2012 (C) dated 06.03.2012, which was issued by the Commissioner, Puducherry. 11.2 Paragraphs 10, 11 and 14 of the above Show Cause Notice record the following: - 10. In view of the above definitions, it appears that the warranty charges received by M/s. VIEPL for the services provided by them falls under the taxable service of Management, Maintenance or Repair Service and are liable to pay Service Tax on the same. The Service tax payable works out to Rs.1,52,928/- as detailed below. The same is liable to be recovered along with interest. Period Charges received Service Tax E. Cess S. Ces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opies to show and prove that against the total billed amount, they had received only Rs.1,62,64,814/- and the outstanding balance amount not so far received from the customer (M/s. Surendra Infrastructure Pvt Ltd) was Rs.4,87,23,652/-. This fact on non-receipt of Rs.4,87,23,652/- was also recognized by the ADC and in the SCN No. 49/2010 dated 05.08.2010 issued by him. ADC had demanded service tax only on the received amount of Rs.1,62,64,814/- and not on the billed amount (mentioned in the Commissioner s SCN). (o) In view of the same, another SCN issued by the Commissioner for the same matter is not maintainable under law and further proceedings on the same are liable to be dropped. 11.4 It is a matter of record, however, that in respect of the above Show Cause Notice, the Commissioner / Adjudicating Authority proceeded to pass the Order-in-Original which is impugned herein, in respect of Appeal No. ST/41600/2015, wherein he has not touched upon the issue in the Show Cause Notice dated 05.08.2010 issued by the Joint Commissioner which is earlier in point of time, on the very same audit objections which is also the basis for issuance of the second Show Cause Notice. 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period April, 1982 to September, 1982 the department had raised demands under two different SCNs . 13.2.3 After hearing the rival contentions, the Hon ble Apex Court has held as under: - 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 already in the knowledge of the department. It was observed in para 14 as follows : 14. We have indicated above the facts which make it clear that the question whether M/s. Pharmachem Distributors was a related person has been the subject-matter of consideration of the Excise authorities at different stages, when the classification w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. We agree with the view taken in the aforesaid judgments and respectfully following th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 It is thus clear that the initial work essentially required the formation of service roads, which was essential for carrying the men and material / equipment and other accessories to the site of work and only thereafter could the clearance of jungle in and around the GTS level get started. 16.2 Hence, it is clear from the above that the appellant did construct road, which was clearly essential in order to reach the place of work. Further, we also note that the contract belonged to a unit of the Government i.e., the Indian Navy, the scope of work was awarded initially to another Government Organization i.e., ECIL, and hence, the service of site formation and clearance, excavation and earth moving and demolition and other similar activities, were rendered to a Government organization, which is also exempt from the purview of Service Tax. 17.1 The appellant has claimed, rightly so, that it did construct roads as well as provide site formation and clearance, excavation and earth moving and demolition service and has thus, claimed the benefit of Notification No. 17/2005 ibid. 17.2 Notification No. 17/2005-S.T. dated 07.06.2005 reads thus: - In exercise of the powers co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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