TMI Blog2024 (1) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... ice recipient has discharged the tax liability on his behalf (Appellant) - this was a legal dispute which involved interpretation of law and mala-fide intention or suppression with intent to evade payment of service tax cannot be attributed to the Appellant. Extended period of limitation - HELD THAT:- The Court has observed that extended period of 5 years is not invokable when there is no willful misstatement or suppression involved. Mere failure to pay duty without any collusion, fraud or willful misstatement not sufficient to invoke extended period of limitation. Thus matter was in the knowledge of the department in 2010 when the first audit was conducted and thereafter regular audit was conducted every year, but the show-cause-no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f records of the Appellant and found short payment of service tax on comparison of amount shown in their ST-3 returns with that in Profit Loss Account in the respective period from 2009-10 to 2012-13. The Revenue, therefore, demanded service tax of Rs.3,43,97,544/- on differential value for the period from 2009-10 to 2012-13. The Appellant contested the Show-Cause-Notice but the demand proposed in the Show-Cause-Notice was confirmed. Being aggrieved, the Appellant has filed the present appeal before the Tribunal. 3. The Ld. Counsel appearing on behalf of the Appellant submits that the Appellant had undertaken Works Contract Services and had received contractual payment on execution of works contract services and submitted copies of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. On the order hand, the Ld. AR for the department reiterated the findings of the impugned order and submitted that there is substantial difference in the value shown in ST-3 returns and the Profit Loss Account, but he did comment on the issue of limitation. 7. The Ld. Counsel explained that this difference in taxable value of ST-3 returns and Profit Loss Account is on account of non-inclusion of value of services in respect of exempted services provided in construction of PMGSY Road and works contract services provided to the service recipients viz M/s HSCL and M/s BIPL who have paid the Service Tax on behalf of the Appellant. It was explained that they were thus not required to pay any tax on the same services and have discharg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on their behalf. (b) Whether the demand is barred by limitation as regular audit inspections have been conducted by the Revenue during the disputed period. 12. As regards liability of tax payment by the Appellant where their main contractors have already paid the tax on their behalf, we find that this remained a vexed issue for the assesses for over the period of time. It would be pertinent to examine it in light of some orders of the Tribunal pronounced from time to time. (i) The larger bench of the Tribunal New Delhi in Vijay Sharma Co. Vs. Commissioner of Central Excise Chandigarh 2010 (20) STR 309 (TRI-LB) held that the tax paid by sub broker may not be denied to be set off against ultimate tax liability on the stock broker. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of limitation, we find that the Appellant have been regularly filing their ST-3 returns and their records have been regularly audited by the Audit Wing of the Department and they have been complying with audit objection. They have also submitted audit reports and compliance thereof. Further, Adjudicating Authority has not made any observation as to how suppression of facts is invokable when regular Audit of records have been conducted by the Revenue. 15. The Hon ble Supreme Court has laid down guidelines for invoking extended period of limitation. The Court has observed that extended period of 5 years is not invokable when there is no willful misstatement or suppression involved. Mere failure to pay duty without any collusion, fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in 16.10.2014 without carrying out any investigation and without adducing any new corroborative evidence for invoking any suppression in the show-cause-notice in as much as service tax was also demanded on the exempted services valued at Rs.11,67,04,375/- pertaining to construction of PMGSY roads. 17. In view of the above discussions, the impugned order holding that the extended period has been correctly invoked, therefore, cannot be sustained and is set aside. It would, in such circumstances, not be necessary to examine the issues on merits that have been raised by the learned counsel for the Appellant. 18. The appeal filed by the Appellant is allowed with consequential relief as per law. ( Order pronounced in open court on 30t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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