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2019 (8) TMI 1845 - AT - Service TaxNon-payment of service tax on account of payment of Customs duty - non-levy of service tax on the portion of service of Erection, Installation and Commissioning - eligibility for CENVAT Credit - suppression of facts or not - invocation of time limitation - revenue neutrality - HELD THAT - There are force in the argument of the Ld. Counsel that they had paid the service tax at the relevant time they were entitled for the cenvat credit and since they are paying huge amount of excise duty from PLA there was no gain to the appellant by not paying the service tax, therefore, malafide intention cannot be attributed to the appellant. In the identical situation this Tribunal has considered the limitation aspect in the case of MESSERS JOHN ENERGY LIMITED VERSUS C.C.E. S.T. -AHMEDABAD-III 2018 (11) TMI 1389 - CESTAT AHMEDABAD wherein the Tribunal has held that this is a clear case of Revenue neutrality. Accordingly, the nonpayment of Service Tax cannot be said to be with malafide intention. The issue of Revenue neutrality has been considered in various judgments cited by the appellant in particular Larger Bench judgment in the case of JAY YUHSHIN LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NEW DELHI 2000 (7) TMI 105 - CEGAT, COURT NO. I, NEW DELHI , according to which if there is a case of Revenue Neutrality the longer period cannot be invoked. There are no suppression of fact or malfide intention for non payment of service tax, therefore, the demand is not sustainable on limitation itself - since, we have deciding the matter on limitation we are not going into the merit of the case. Appeal allowed.
Issues:
1. Liability of service tax on imported capital goods involving service portion. 2. Applicability of cenvat credit in relation to excise duty paid on final product. 3. Consideration of revenue neutrality in non-payment of service tax. 4. Assessment of malafide intention in non-payment of service tax. 5. Impact of limitation period on the sustainability of the demand. Analysis: 1. The case involved a dispute regarding the liability of service tax on imported capital goods with a service portion. The appellant argued that since customs duty was paid on the overall value of capital goods, there should be no service tax on the service component of Erection, Installation, and Commissioning. The appellant contended that being an excisable unit paying excise duty on final products, any service tax liability on imported capital goods should entitle them to cenvat credit. The appellant emphasized the substantial excise duty payments made, asserting revenue neutrality and absence of malafide intention in not paying the service tax. 2. The Tribunal considered the appellant's submission and observed that since the appellant paid service tax at the relevant time and was eligible for cenvat credit due to significant excise duty payments, there was no financial gain in not paying the service tax. Citing a previous judgment involving a similar situation, the Tribunal highlighted the concept of revenue neutrality. It was noted that the appellant's payment of a major portion of service tax in cash and a small portion from cenvat credit indicated revenue neutrality. Consequently, the Tribunal concluded that the non-payment of service tax did not reflect malafide intention, leading to the demand for the extended period being deemed unsustainable. 3. The Tribunal emphasized the principle of revenue neutrality in determining the sustainability of the demand for an extended period. It was held that if there was no malafide intention and the situation demonstrated revenue neutrality, the demand could not be upheld for an extended period. The Tribunal referenced various judgments, including a Larger Bench decision, to support the stance that in cases of revenue neutrality, longer periods for demand could not be invoked. 4. Considering the absence of suppression of facts or malafide intention in the non-payment of service tax, the Tribunal concluded that the demand was not sustainable based on limitation alone. As the matter was decided on limitation grounds, the Tribunal did not delve into the merits of the case, further reinforcing the finding of revenue neutrality and lack of malafide intention. 5. Ultimately, the impugned order was set aside, and the appeal was allowed based on the Tribunal's determination of revenue neutrality, absence of malafide intention, and the impact of the limitation period on the sustainability of the demand. The penalty attributed to the recoverable amount of service tax was also set aside in line with the findings regarding revenue neutrality and lack of malafide intention.
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