2019 (2) TMI 1036 - AT - Service Tax

Short payment of service tax - wrong availment of abatement of 67% under N/N. 01/2006-ST dated 01.03.2006 - Construction services in respect of Commercial or industrial buildings and civil structure - CENVAT credit reversed - time limitation - Held that - Admittedly the show cause notice stands issued after the normal period of limitation. The fact of availment of credit as also the exemption Notification was being reflected by the assessee in their statutory records and returns, in which case no mala fide can be attributed to them - Otherwise also, the appellant had reversed the Cenvat credit so availed, thus making him entitled to the benefit of Notification. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Appeal against order passed by Commissioner (Appeals) on service tax assessment.
2. Availability of abatement under Notification No.01/2006-ST for construction services.
3. Demand of service tax, interest, and penalty for short payment of service tax.
4. Invocation of extended period of limitation for issuing show cause notice (SCN).
5. Applicability of Tribunal's decisions on limitation issues.
6. Justifiability of interference in the impugned order.
7. Reversal of Cenvat credit by the appellant.

Analysis:
1. The appeal was filed by the Revenue against the order passed by the Commissioner (Appeals) concerning a service tax assessment issue. The respondent, a service tax assessee, provided various output services and had short paid service tax due to the wrong availment of abatement under Notification No.01/2006-ST for construction services. The party reversed the Cenvat credit taken on input services upon identification of the error during audit and queries.

2. A show cause notice was issued to demand service tax along with penalty, contending that since Cenvat credit on input services was availed, the abatement of 67% was not applicable. The adjudicating authority confirmed the demand. However, the Commissioner (Appeals) allowed the appeal on the grounds of limitation, stating that there was no suppression of facts, and the extended period could not be invoked for issuing the SCN.

3. The Commissioner (Appeals) relied on previous cases to support the decision on limitation issues. The Tribunal found no justifiable reason to interfere in the impugned order, noting that the show cause notice was issued after the normal period of limitation. The appellant's reflection of availment of credit in statutory records and returns without any malafide intent was considered. The appellant's reversal of Cenvat credit entitled them to the benefit of the Notification.

4. Ultimately, the Tribunal upheld the impugned order and rejected the appeal filed by the Revenue. The decision was based on the lack of merit in the Revenue's contentions, the appellant's compliance with statutory requirements, and the reversal of Cenvat credit. The judgment emphasized the importance of following statutory provisions and record-keeping practices in tax assessments.