2019 (10) TMI 1202 - AT - Service Tax

Extended period of limitation - Commercial and Industrial Construction Service - intent to evade present or not - demand of service tax - HELD THAT - The appellant is a Government organization and as held by this Tribunal in various cases allegation of intention to evade payment of service tax cannot be leveled against the Government organization. Therefore, the demand for the extended period of limitation is not sustainable. Further, for normal period of limitation the appellants were entitled for exemption under N/N. 26/2012 since they did not avail Cenvat credit since the appellant did not register themselves with the Service Tax Department. So to compute the service tax payable by the appellant, the matter needs to be remanded to Original Authority - the impugned order is set aside and matter remanded to Original Authority to re-compute service tax payable by the appellant within the normal period of limitation after allowing the exemption of 75% to the appellant - appeal allowed by way of remand.

Issues:
1. Appellant engaged in construction activities under Uttar Pradesh Urban Planning Development Act, 1973.
2. Service tax demand raised for the period from October, 2008 to March, 2013.
3. Invocation of extended period of limitation for raising the demand.
4. Penalties imposed under Section 78 and Section 77 of Finance Act, 1994.
5. Appellant's contention regarding exemption under Notification No.26/2012 and Cenvat credit.

Analysis:

1. The Appellant, a government organization, was involved in construction activities under the Uttar Pradesh Urban Planning Development Act, 1973. The Revenue raised a demand of around ?2 crores for the period from October, 2008 to March, 2013, considering the activity as 'Commercial and Industrial Construction Services'.

2. The demand was raised by invoking the extended period of limitation. The Original Authority confirmed the demand and imposed penalties under Section 78 and Section 77 of the Finance Act, 1994. The Appellant challenged this order before the Tribunal.

3. The Appellant's Chartered Accountant argued that the Appellant, being a Government Authority, had no intention to evade service tax payment. He pointed out that the service tax levy prior to 01/07/2010 did not cover the activity performed by the Appellant. The Chartered Accountant also highlighted the denial of exemption under Notification No.1/2006, stating that the Appellant had not registered for service tax, hence the question of Cenvat credit did not arise.

4. The Tribunal, after considering the submissions, held that the demand for the extended period of limitation was not sustainable against a Government organization. It was noted that the Appellant was entitled to exemption under Notification No.26/2012 as they did not avail Cenvat credit due to non-registration with the Service Tax Department. The matter was remanded to the Original Authority to re-compute the service tax payable within the normal period of limitation, allowing the exemption of 75% to the Appellant. The penalties imposed were set aside.

5. Consequently, the Tribunal allowed the appeal by way of remand, emphasizing the Appellant's status as a Government organization and the applicability of exemptions under the relevant notifications. The penalties were overturned, and the matter was directed to be re-evaluated by the Original Authority within the normal period of limitation, considering the exemptions available to the Appellant.

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