2017 (5) TMI 1082 - AT - Service Tax

Non-payment of tax - commission received under the head subvention account for providing the services to its customers - time limitation - sub-section (1) of Section 73 of the FA - Held that - receipt of subvention/manufacturer discount in the nature of interest was reflected by the appellant in the periodical ST-3 Returns, the charges of fraud, collusion, wilful mis-statement, suppression of facts etc. cannot be levelled against the appellant, justifying invocation of the extended period of limitation for issuance of SCN - demand should be confined to the normal period of one year - demand under proviso to sub-section (1) of Section 73 of the FA, 1994 is barred by limitation of time. Issuance of second SCN on 23.10.2009 is clearly barred by limitation of time, having been issued beyond the period of one year from the relevant date. Appeal allowed - decided partly in favor of appellant.

Summary

Issues:
1. Time limitation for initiation of proceedings by the Department.
2. Validity of multiple show cause notices based on the same facts.
3. Admissibility of service tax demand on subvention income.

Analysis:

1. Time Limitation for Initiation of Proceedings:
The case involved a dispute regarding the time limitation for the initiation of proceedings by the Department. The appellant contended that the proceedings initiated by the Department for confirming the demand were time-barred. The appellant argued that the receipt of subvention amount during the disputed period was reflected in the periodic ST-3 returns filed by them. The appellant relied on various judgments, including those of the Supreme Court, to support their claim that the show cause notices issued by the Department were beyond the limitation period. The Tribunal agreed with the appellant, stating that as the subvention amount was duly reflected in the returns, the charges of fraud or suppression of facts could not be leveled against the appellant, justifying the invocation of the extended period of limitation for issuing the show cause notice.

2. Validity of Multiple Show Cause Notices:
Another issue in the case was the validity of multiple show cause notices based on the same set of facts. The Department had issued two show cause notices on different dates seeking confirmation of service tax demand for overlapping periods. The Tribunal noted that while issuing the first show cause notice, the material facts were already known to the Department. Therefore, the issuance of the second show cause notice beyond the limitation period was deemed unjustified. Citing the precedent set by the Supreme Court in a similar case, the Tribunal held that the second show cause notice could not be sustained on the ground of limitation.

3. Admissibility of Service Tax Demand on Subvention Income:
The crux of the dispute revolved around the admissibility of the service tax demand on subvention income received by the appellant. The Department had demanded service tax on the commission received by the appellant under the subvention account for providing services to customers. The impugned order confirmed the service tax demand along with interest and penalties. However, the Tribunal, after examining the facts and submissions, set aside the impugned order and allowed the appeal in favor of the appellant on the grounds of limitation, stating that the demand confirmed under the Finance Act was time-barred.

In conclusion, the Tribunal's judgment in this case primarily focused on the time limitation for initiating proceedings, the validity of multiple show cause notices, and the admissibility of service tax demand on subvention income. The Tribunal ruled in favor of the appellant, emphasizing that the demand confirmed under the Finance Act was barred by limitation of time, thereby setting aside the impugned order.