TMI Blog2024 (2) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... the manpower recruitment agency service the appellant was only required to pay 25% of service tax and in respect of the service provided in execution of works contract they were require to pay 50% of the Service Tax. However, department in violation of the statutory provisions demanded service tax at full rate of 100% from the appellant, for the period of 01.07.2012 to 31.03.2013. This issue also need deliberation. Since, the issue that whether demand can be time barred or not is a matter of fact based on record. It is found that the aspect of limitation also was not properly addressed by the adjudicating authority. Therefore, in view of the above deficiency in the adjudication order, the entire matter needs to be reconsidered considering the detailed submission of the appellant. The matter needs to be remitted back to the Adjudicating Authority - Appeal allowed by way of remand. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. C L MAHAR Shri Jigar Shah , Advocate for the Appellant Shri, Rajesh Nathan , Assistant Commissioner ( AR ) for the Respondent ORDER RAMESH NAIR The brief facts of the case ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest and late fees. Afterwards a corrigendum dated 21.04.2014 was issued to the aforesaid show cause notice 11.10.2013. The Appellant filed a detailed reply against the Show Cause Notice vide letter dated 30.05.2014. The adjudicating authority i.e. the Ld. Commissioner, Surat- I has passed the Order-in- Original No. SUR-EXCUS-001-COM-018-14-15 dated 25.06.2014 confirming the service tax demand of Rs. 1,66,91,838/- along with interest, penalty and late fees. The Appellant being aggrieved by the Impugned Order, has preferred the present appeal. 2. Shri Jigar Shah, Learned Counsel appearing on behalf of the appellant at the outset submits that the show cause notice issued on 11.10.2013 for the period of 2008-09 to 2012-13 was issued by invoking the extended period of limitation under the proviso to Section 73(1) of the Finance Act, 1994. It is submitted that the invocation of extended period of limitation is not sustainable since, the Show Cause Notice failed to establish that the Appellant had an intention to evade tax. However, it is submitted that in the present case there was no suppression of any fact or wilful misstatement on the part of the Appellant. He submits that it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CE, 1994 (73) ELT 257 (SC) In view of the above decisions, it is submitted that in absence of any positive act on behalf of the Appellant to suppress facts, no case of intention to evade tax can be made out against the Appellant. None of the elements warranting invocation of extended period of limitation exist in the present case as all the facts were within the knowledge of Department. Hence, the demand of service tax is completely time-barred and the demand confirmed in the Impugned Order basis the SCN is liable to be set aside. 2.2 He submits that In any event, the Show Cause Notice has not brought any evidence on record to show that the Appellant had suppressed any fact from the Department. Further, the Appellant was under the bona fide belief that it was not liable to pay service tax. In light of the above submissions, the period of limitation has been wrongly invoked by the Department. On this ground alone, the Show Cause notice is liable to be quashed and the Impugned Order is liable to be set aside. The Appellant states and submits that the Show Cause Notice is vague and beyond comprehension and it has resorted to raise a demand without proper classification and/or c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against Appellant ignoring the request of the Appellant. It is submitted that it is settled position of law that the liability to pay service tax is on the main contractor and not on the sub-contractor. Therefore, it is submitted that the Appellant is not liable to pay service tax in all the cases where it has worked in the capacity of a sub- contractor. Thus, on this ground too, the demand confirmed against the Appellant is liable to be dropped. 2.5 He further submits that after the introduction of the negative list regime, the provisions of service tax had changed. In terms of the said change, the Appellant being an individual proprietary firm and its clients like L T, Essar etc being corporate bodies, the Appellant was only required to discharge a specified percentage of service tax. Accordingly, in respect of the services related to supply of manpower, the Appellant was only required to pay 25% of the service tax and in respect of the services provided in execution of the works contract service, the Appellant was only required to pay 50% of the service tax. However, the Department in utter violation of the said provisions demanded service tax at full rate of 100% from the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant have made a submission that appellant s request for cross-examination has not been acceded by the Adjudicating Authority. For a fair play in adjudication, in our view the opportunity of cross-examination ought to have been extended to the appellant so the truth can be brought on record and justice can be delivered. The appellant also submitted that as regard the manpower recruitment agency service the appellant was only required to pay 25% of service tax and in respect of the service provided in execution of works contract they were require to pay 50% of the Service Tax. However, department in violation of the statutory provisions demanded service tax at full rate of 100% from the appellant, for the period of 01.07.2012 to 31.03.2013. This issue also need deliberation. 4.3 We find that on behalf of the appellant, it was extensively argued the ground of demand being time barred by relying on various judgments. Since, the issue that whether demand can be time barred or not is a matter of fact based on record. We find that the aspect of limitation also was not properly addressed by the adjudicating authority. Therefore, in view of the above deficiency in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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