2016 (2) TMI 1112 - AT - Service Tax

Sale or service transaction - Advertising Agency Service - extended period of limitation - Held that - the appellant was of the bona fide belief that the transaction with M/s. Eastman Cast & Forge Ltd. is a sale transaction and not falls within the ambit of service. Thus the allegation of suppression of facts with an intent to evade payment of tax cannot be levelled against the appellant - since the SCN was issued on 15-9-2010 seeking recovery of service tax for the periods 2005-06 to 2007-08 is barred by limitation of time being issued beyond the period of one year from the relevant date - appeal allowed - decided in favor of appellant.

Issues:
1. Whether the appellant is liable to pay service tax for providing "Advertising Agency Service" to M/s. Eastman Cast & Forge Ltd.
2. Whether the extended period of limitation for initiating proceedings by the Service Tax Department is legal and proper.
3. Whether there was suppression of facts or wilful misstatement by the appellant to evade payment of service tax.

Analysis:

Issue 1: Liability for Service Tax
The appellant, engaged in providing taxable service categorized as "Advertising Agency Service," received payments from M/s. Eastman Cast & Forge Ltd. The Central Excise Department observed these payments during a scrutiny, leading to the issuance of a Show Cause Notice seeking confirmation of service tax amount, interest, and penalties. The adjudication order confirmed a service tax demand and imposed penalties under relevant sections of the Finance Act, 1994. The appeal challenged this decision, arguing that the supply of goods did not fall under the purview of service tax, as the appellant believed the transactions to be sales. The Tribunal, after examining invoices and the nature of transactions, concluded that the appellant's belief was bona fide, and there was no intent to evade tax. Therefore, the allegation of suppression of facts was dismissed, and the service tax demand for the specified period was deemed unsustainable.

Issue 2: Extended Period of Limitation
The appellant contested the legality of the extended period of limitation for initiating proceedings, arguing that there was no suppression of facts or wilful misstatement to evade service tax payment. The Tribunal noted that the Show Cause Notice issued on 15-9-2010 sought recovery of service tax for the periods 2005-06 to 2007-08. It held that the notice issued beyond one year from the relevant date was barred by the limitation of time. Consequently, the Tribunal found the initiation of proceedings beyond the prescribed period as improper and ruled in favor of the appellant.

Issue 3: Suppression of Facts
While the Departmental Representative reiterated the findings recorded in the impugned order, the Tribunal, upon reviewing the case, found no evidence of suppression of facts with the intent to evade payment of service tax by the appellant. The Tribunal emphasized that the appellant's belief in the nature of transactions as sales, supported by the invoices, demonstrated a lack of fraudulent intent. As a result, the allegation of suppression was deemed baseless, and the impugned order confirming the service tax demand and penalties was set aside, allowing the appeal in favor of the appellant.

In conclusion, the Tribunal ruled in favor of the appellant, setting aside the impugned order and rejecting the service tax demand and penalties, emphasizing the absence of suppression of facts and the improper initiation of proceedings beyond the limitation period.

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