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TMI Blog2025 (2) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... period of limitation under proviso to Section 73(1) of the Finance Act, 1994. Vide the impugned order dated 29.10.2020, the learned Commissioner has confirmed following demands :- (a) Short payment of service tax of Rs.33,04,058/- (b) Wrong availment of Cenvat credit on Rent a Cab and Goods Transport Agency Rs.61,255/- (c) Non payment of service tax on availing Legal services (on reverse charge basis) Rs.2,512/- (d) Non payment of service tax on availing Manpower Supply Service (on reverse charge Rs.5,747/- basis). (e) Non payment of service tax on SBC Rs.1,263/- (f) Total Rs.33,74,835/-. 3. The learned Commissioner imposed equal penalty under Section 78(1) of the Finance Act, 1994 and Rule 15 of Cenvat Credit Rules, 2004 CCR, 2004. He also imposed penalty of Rs.10,000/- under Section 77(2) of the Act, on account of non payment of service tax correctly. 4. The Appellant by way of the aforesaid appeal have challenged following demands and corresponding imposition of penalty under Sections 78 and 77(2) of the Act, 1994. (a) Short payment of service tax Rs.33,04,058/- (b) Non payment of service tax on availing Legal services Rs.2,512/- (c) Non payment of service t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax of Rs.33,04,058/- on gross amount of Rs.2,20,27,053/- being short paid during the year 2016-17. The Appellant in their grounds of appeal as well as during the hearing have submitted that the said amount of Rs.2.20 crore relates to receipt of funds towards construction of road. I have seen pages 44 & 45 of the appeal paper book wherein details of funds received during 2016-17 have been given. I find that there are several entries wherein amounts have been received towards construction of road. These funds have been received either from DRDA, Gorakhpur or Gorakhpur Development Authority, out of MP/MLA funds. I find that entry 13(a) of Notification No.25/2012 dated 20.06.2012 grants exemption from payment of service tax on construction of road, bridge, tunnels or terminals for road transportation for use by general public. I hold that the said amount of Rs.2.20 crore having been received towards construction of road was exempted from payment of service tax. Therefore, the demand of Rs.33,04,058/- is liable to be set aside. 10. On the issue of demand of service tax Rs.8,259/- on availing Legal and Manpower Supply service, the Appellant have not challenged the demand on me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to evade and violation of Act or Rules with an intent to evade. We do not find any force in this argument because every assessee operates under self-assessment and is required to self- assess and pay service tax and file returns. If some tax escapes assessment, Section 73 provides for a SCN to be issued within the normal period of limitation. This provision will be rendered otiose if alleged incorrect self-assessment itself is held to establish wilful suppression with an intent to evade. To invoke extended period of limitation, one of the five necessary elements must be established and their existence cannot be presumed simply because the assessee is operating under self-assessment". 19. It has also been pointed out that but for the audit, the allegedly irregularly availed CENVAT credit would not have come to light. It is incorrect to say that but for the audit, the alleged irregular availment of CENVAT credit would not have come to light. It is undisputed that the Appellant has been self-assessing service tax and filing ST-3 Returns. Unlike the officers, the assessee is not an expert in taxation and can only be expected to pay service tax and file returns as per its understan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charged his responsibility under Section 72". 21. This legal position that the primary responsibility for ensuring that correct amount of service tax is paid rests on the officer even in a regime of self- assessment was clarified by the Central Board of Excise and Customs in its Manual for Scrutiny of Service Tax Returns the relevant portion of which is as follows: "1.2.1A The importance of scrutiny of returns was also highlighted by Dr. Kelkar in his report on Indirect Taxation. The observation made in the context of Central Excise but also found to be relevant to Service Tax is reproduced below: It is the view that assessment should be the primary function of the Central Excise Officers. Self-assessment on the part of the taxpayer is only a facility and cannot and must not be treated as a dilution of the statutory responsibility of the Central Excise Officers in ensuring correctness of duty payment. No doubt, audit and anti-evasion have their roles to play, but assessment or confirmation of assessment should remain the primary responsibility of the Central Excise Officers. (emphasis supplied) 22. Therefore, to say that had the audit not been conducted, the incorrect ava ..... X X X X Extracts X X X X X X X X Extracts X X X X
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