9911796707
TMI Blog2024 (11) TMI 1136X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1994. 2.1. An audit was conducted of the records of the Appellant for the period from 2006-07 to 2010-11. During the course of audit, certain discrepancies were noticed. On account of the discrepancies noticed, an investigation was initiated against the Appellant. The Appellant thereafter submitted their balance sheet, Profit & Loss Account, sample copy of bills raised by them, sample copy of work orders and TDS details (Form 16A/Form 26AS) to the audit team. On verification of the documents furnished by the Appellant, it was found that the Appellant had not paid Service Tax appropriately for the period from 2006-07 to 2011-12. 2.2. A Statement showing the taxable values declared by the Appellant in the ST-3 Returns filed by them and the income received as per the Form 26AS, Profit & Loss Account has been prepared, which is reproduced below: - STATEMENT OF INCOME/RECEIPT YEAR As per Form 26AS (Rs) As per Profit & Loss A/c. (Rs.) As per ST-3 (Rs.) 2006-07 87562614.00 87562614.00 - 2007-08 45472050.67 44559932.00 7735301.00 2008-09 59856432.47 67879970.00 27093882.00 2009-10 61555749.00 78973117.76 50917535.60 2010-11 81001496.42 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re eligible for abatement of 33% from the taxable value and service tax is liable to be paid only on 67% of the taxable value received by them. If the abatement of 33% is allowed, then the Service Tax liability on the taxable value would be less than the service tax already paid by them. 6.3. The Appellant submitted that they have already paid Service Tax on the taxable value of Rs.17,72,81,266/-, which is more than the taxable value on which they are liable to pay service tax after the abatement. Thus, the appellant contended that the demand of service tax confirmed in the impugned order is not sustainable. 6.4. The Appellant further submits that the entire demand has been raised on the basis of the data available in their balance sheet, Profit & Loss Account and the data received from the Income Tax Department in Form 26AS. The appellant submits that they had taken registration with the Service Tax Department on 12.10.2006 and have been paying Service Tax and filing their S.T.-3 Returns regularly; they have not suppressed any information from the Department. Accordingly, it is the contention of the Appellant that the demand confirmed by invoking the extended period of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant vide the impugned order based on the difference in the taxable value declared by the Appellant in their S.T.-3 Returns and the gross income receipt available in their balance sheet/Profit & Loss Account details. 10. During the course of the hearing, the Appellant contended that the Show Cause Notice issued on 04.07.2013 for the period from 2006-07 to 2011-12 is beyond the period of limitation of five years and accordingly, they submitted that the demand for the period from 2006-07 to 2007-08, covering the period beyond five years, is not sustainable. 10.1. In this regard, we observe that even though the Appellant had registered with the Service Tax Department in the year 2006, they filed their first Service Tax Return for the period from October 2006 to March 2007 only on 12.10.2009. The relevant date for computing the five-year period as per proviso to Section 73 of the Finance Act, 1994 is the date of filing of the first Return. Since the return for the period 2006-06 and 2007-08 were filed only on 12.10.2009, we hold that the demand raised in the notice for the period from 2006-07 to 2011-12 is well within the extended period of limitation. Accordingly, we hold that the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shing service'. The department has alleged that the appellant has not furnished sufficient evidences to prove that goods and materials were used in the execution of Construction works. In the impugned order, the Adjudicating Authority has observed that the appellant has purchased a huge amount of raw materials however has not produced evidence to link the sale of materials to each client and therefore the abatement cannot be granted. Observation in the impugned order reads as under:- "19. It is not denied that they have purchased huge amount of raw materials. However, in order to get the benefit of Notification No. 12/2003-S.T., which must be strictly construed, value of only that material could be deducted from the gross value of service received, where there is a clear cut of sale to that customer to whom such services has been provided. Assessee has failed to link the sale of materials to each of such client and the gross value received from them. The notification does not provide benefit for gross deduction of all purchases and thereafter either used/sold/supplied in relation to all the services provided to service recipients." Further in Para 18, it is observed by the Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoking the extended period of limitation, we observe that the Show Cause Notice has been issued on the basis of the data submitted by the Appellant, i.e., from their balance sheet, Profit & Loss Account and Form 26AS.The Appellant submitted that they had obtained registration with the service tax department in the year 2006 and have been filing their Returns. Accordingly, it is their submission that they have not suppressed any information from the Department and thus the extended period of limitation is not invokable. 12.1. In this regard, we observe that the Appellant had been filing their Returns and paying Service Tax regularly. They have registered with Service Tax Department since 2006, but till the date of audit conducted in 2011, the Department had not raised any objection regarding any short payment of Service Tax by the Appellant. We observe that the if the demand has been confirmed on the basis of the data submitted by the appellant, i.e., from their balance sheet, Profit & Loss Account and Form 26AS, then extended period of limitation is not invokable. We observe that this view has been held in various judicial pronouncements. 12.2. In the case of Arya Logistics v CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormal course of business. It is pertinent to note that the entire case of the department on merit is that since appellant have availed Cenvat Credit, they violated the condition of abatement notification No. 01/2006-ST. As discussed above the facts that availment of Cenvat Credit and payment of Service Tax on the abated value were declared in the ST-3 return. Hence, having all the facts were disclosed to the department, nothing prevented department from issue of show cause notice within normal period of one year. Therefore, the demand raised in the show cause notice is clearly time-barred. 4.3 Since the demand is not sustainable on limitation alone, we refrain from giving finding on merit of the case and the same is left open." 12.3. In the case of Balajee Machinery v Commissioner of CGST & Excise, Patna-II [2022 (66) G.S.T.L. 440 (Tri-Kolkata)], it has been held as under: "10. In so far as the issue of limitation is concerned, we do not find any ingredient of fraud or suppression with an intent to evade payment of tax. In the case of Pappu Crane Services v. CCE, Lucknow (Final Order No. 71246 of 2019 in ST Appeal No. 70707 of 2018), the Co-ordinate Bench of Tribunal at Allaha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Noida, Final Order No. 70126/2019, dated 27-12-2018. This Tribunal has held in other disputed cases, that even the barricade provided on the side of highway, maintaining greenery on the side or middle of highway, construction of any facility, refreshment centre for road users, is also part of the road construction and such activity is also exempt. Even the administrative building constructed by the concessionaire, for construction of the road or highway for administration and collection of toll etc. is part of road. 14.-------------------------------------------------------------------- 15. Accordingly, in view of our findings, we allow the appeal and set aside the impugned order. We also hold that extended period of limitation is not available to Revenue. We also hold that appellant is also entitled to consequential benefits, in accordance with law." 12.5. Accordingly, by relying on the decisions cited above, we hold that the demand cannot be raised in this case by invoking the extended period of limitation. Thus, we hold that the demand confirmed in the impugned order by invoking the extended period of limitation is not sustainable. 12.6. In this case, we observe that the S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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