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2023 (6) TMI 372 - AT - Service TaxDemand of service tax - belated filing of ST-3 returns - Reconciliation of amount shown in the ST3 returns and Form 26AS (TDS statement) - Works Contract Service - Maintenance Repair Service - Manpower Recruitment/Supply Service - Cleaning Service - suppression of facts - invocation of extended period of limitation. Extended period of limitation - HELD THAT - From the records it is seen that a Show Cause Notice dated 22.05.2015 was already issued to the Appellant for an earlier period viz. 2010-11 and 2011-12 on the issue of non-payment of Service Tax by invoking the extended period of limitation which has attained finality in terms of Tribunal s Final Order dated 22.11.2019 dismissing Department s appeal under National Litigation Policy. Further in the said case, the Ld. Commissioner (Appeals) had decided the matter in favour of the Appellant by considering all the submissions as to abatement and reverse charge (RCM) on services provided by the Appellant as well as the payments made during the said period - the present Show Cause Notice is also based on the data collected by the Department during IOCL CERA audit for all contractors and basis the payments made by IOCL to various contractors, the demand has been raised in the impugned proceedings also. Hon ble Supreme Court in the case of ECE INDUSTRIES LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, NEW DELHI 2003 (3) TMI 136 - SUPREME COURT , had held that the extended period of limitation cannot be invoked where the Department has earlier issued Show Cause Notice in respect of the same subject-matter. It could not be said that there was a willful suppression or mis-statement. Then, the extended period of limitation cannot be invoked. As regards the judgment referred to by the department in their written submissions in the case of MM CYLINDERS (P) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, TIRUPATHI 2011 (9) TMI 779 - CESTAT, BANGALORE , the same is not applicable to the facts of the present case as in that case the further investigations had revealed new details, whereas in the present case both the notices are based on third party IOCL records and then comparing the same with 26AS data of the Appellant. The Appellant had been providing same services as was alleged in the earlier Show Cause Notice dated 22.05.2015 which was adjudicated in favour of the Appellant for the earlier period. It is not the case of the Department that there was any change in the nature of services provided by the Appellant and thus when the first Show Cause Notice was issued invoking extended period of limitation, it cannot be alleged that the Appellant has suppressed facts while issuing demand notices for subsequent period. The impugned Order-in-Original arising against the said Show Cause Notice which is issued by the Department for a subsequent period by invoking the extended period of limitation is unsustainable and is liable to be quashed on this ground itself - However, the Appellant is liable to pay the late fee for filing of ST-3, if not already paid. Even though the extended period of limitation cannot be invoked in the present case, on merits it is found that the department has grossly erred in not taking into account the payments made by the Appellant as well as submissions for provision of services having abatement as well as falling under reverse charge mechanism. It is found that the ST-3 returns disclosing the payment of tax had been filed by the Appellant belatedly, but before passing of the adjudication order, the same was communicated to the Department by the Appellant. However, the Ld. Adjudicating authority has not taken it on record as the same was filed belatedly. In this regard though the Appellant had filed the ST-3 belatedly, but the same had clearly accounted for all the value of taxable services provided by the Appellant. It is found from the Chartered Accountant s certificate that the entire value as per form 26AS has suffered tax to the extent of supplies taxable under forward charge and only GTA services provided by the Appellant has not suffered tax at the hands of the Appellant as the recipient was liable to pay Service Tax on the same. The Ld. Authorized Representative has not been able to make out a case that the services of works contract as provided by the Appellant are not allowed abatement as claimed by the Appellant or otherwise that such services were not provided by the Appellant. Thus, at this juncture having regard to the various reconciliations submitted and the Chartered Accountant s certificate produced, the amounts as per form 26AS has suffered service tax at the hands of the Appellant. The impugned order cannot be sustained and is accordingly set aside - The Appeal filed by the Appellant succeeds both on merits as well as on limitation.
Issues:
The issues involved in the judgment are non-payment of Service Tax, invocation of extended period of limitation, consideration of payments made by the Appellant, and applicability of abatement on services. Non-payment of Service Tax: The Appellant, engaged in providing taxable services to Indian Oil Corporation Ltd, was alleged to have not filed ST-3 returns on time and not paid Service Tax on the entire consideration received. The Show Cause Notice sought payment of Service Tax without considering the nature of services provided or the payments made by the Appellant. The Adjudicating authority confirmed a demand of Rs.3,73,32,890/- along with interest and penalties, which the Appellant challenged before the Tribunal. Invocation of Extended Period of Limitation: The Department invoked the extended period of limitation based on the Appellant's alleged suppression of facts by not filing ST-3 returns. The Appellant argued that the entire demand was barred by limitation, citing a previous case where a similar demand was dropped in their favor. The Tribunal found that the extended period of limitation was incorrectly invoked as the Department was already aware of the relevant facts. Consideration of Payments Made by the Appellant: The Appellant contended that all taxes had been paid with interest before the adjudication order, and submitted calculations and a Chartered Accountant's certificate to support their claim. The Department argued that the Appellant's submissions did not match the data collected, but the Tribunal found that the Appellant's payments had accounted for all taxable services provided. Applicability of Abatement on Services: The Tribunal observed that the Department had erred in not considering the payments made by the Appellant and the provisions for abatement on services. It was found that the Appellant's belated filing of ST-3 returns accounted for all taxable services, and the Department failed to prove that certain services were not eligible for abatement as claimed by the Appellant. In conclusion, the Tribunal set aside the impugned order, ruling in favor of the Appellant on both merit and limitation grounds. The Appellant was directed to pay the late fee for filing ST-3, if not already paid.
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