TMI Blog2024 (3) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... n on the part of the appellant to evade service tax in the facts of the case. Demand with respect to construction of elevated structure for BMRCL - HELD THAT:- Admittedly, when the project was awarded to the appellant, the same was exempt from service tax under Notification No. 25/2012-ST. During execution of project, the said exemption was withdrawn w.e.f. 01.03.2016. Thereafter, admittedly, this appellant was pursuing with the Principal BMRCL for release of funds towards payment of service tax, which took some time and upon release of such funds, admittedly, appellant had deposited such tax with interest. Hence, SCN is bad and is hit by the provisions of Sec 73(3) of the Finance Act, which provides that in such cases where tax and interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , demanding service tax for the period April, 2015 to June, 2017, alleging that the appellants did not pay service tax properly and further, not made proper disclosures to the department. It was only during verification carried out by the department, the shortage in payment of service tax was found. The SCN was adjudicated on contest, upholding the invokation of extended period of limitation and the following demands were confirmed with interest imposing equal penalty under Sec 78 on two projects executed by the appellant during the period April 2015 to June 2017. The details of which are as follows: 1. Service Tax on construction of Subansiri Dam/Tunnel Rs.18,07,95,801/- (main contractor paid full service tax) 2. Service Tax on constructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivity is taxable from 01.07.2012 and upheld the demand on RA Bill No. 75 under extended period. d) Subsequently, another round of audit was conducted by the officers of Hyderabad Audit Commissionerate for the period 2013-14 to 2015-16 and Final Audit Report No. 54/2016-17 dt.22.06.2017 was issued, wherein no para was raised on Subansiri Project. 5. From the above facts, it is clear that the department was fully aware of the activity of the appellant and the SCN dt.09.09.2020 for the period 2015-16 to June, 2017 is clearly barred by limitation as second SCN on the same issue cannot invoke extended period. Relevant case laws of Hon ble Supreme Court are as follows, relied upon:- a) Nizam Sugar Factory vs CCE AP [2006 (197) ELT 465 (SC)] b) EC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted as per Sec 73(3). There is no case of suppression, but only delayed payment of tax, for reasons beyond control. Reliance is placed on CCE ST, LTU, Bangalore vs Adecco Flexione Workforce Solutions Ltd [2012 (26) STR 3 (Kar.)], wherein it was held that when the tax and interest were paid before SCN, no notice need to be issued as per Sec 73(3). RCM demand on Royalty paid to State Government for sand/stone/earth: 8. The permits were issued in the name of M/s BGS-SGS-SOMA JV and the appellant did not receive any services from Government. They only arranged DDs for JV and got reimbursement. 9. Hon ble Supreme Court (7 Judge Bench) in the case of India Cements Ltd Others vs State of Tamil Nadu Others [1990 AIR 85] has opined that the Royalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am Sugar Factory vs CCE AP (supra). Learned Counsel has also demonstrated from the RA Bills which are prepared by the main contractor M/s BGS-SGS-SOMA JV, wherein they have deducted the amount towards service tax from their gross amount. Thus, it is also obvious that appellant was under the impression that they had already suffered the service tax by way of deduction at source, by the main contractor on the said activity. Thus, there does not appear to be any deliberate attempt or intention on the part of the appellant to evade service tax in the facts of the case. 15. So far the demand of service tax of Rs.3,78,31,647/- is concerned, with respect to construction of elevated structure for BMRCL, admittedly, when the project was awarded to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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