2023 (6) TMI 1057 - AT - Service Tax

Levy of Service Tax - leasing of the land of Kandla Port Trust - appellant claims that tax is not leviable on the ground that the oil companies to whom the bills were raised were having unauthorized occupation of the land as the lease contract was expired - SCN not issued under Section 73 (1) of FA - interest - penalty - HELD THAT - The appellant have raised the ground of taxability on the service of renting of immovable property for the first time before this Tribunal. However this issue is neither in the show cause notice nor in the impugned order. The show cause notice was issued only for demand of interest and penalty and there is no demand of service tax. The appellant have admittedly paid the service tax without raising any protest. It is for this reason the Revenue has not demanded the service tax under Section 73 (1) of Finance Act, 1994. Extended period of limitation - interest - HELD THAT - As regard the issue whether the interest is recoverable and penalty was rightly imposed or otherwise, it is found that the show cause notice for recovery of interest and imposition of penalties was issued much after the normal period of limitation. It is undisputed fact that or malafide intention on the part of the appellant particularly being a trust of Government of India. Therefore, the invocation of the extended period is not legal and proper. The show cause notice was issued under the extended period is clearly time barred. Penalty - HELD THAT - As regard the penalty though the same is not imposable for the above reasoning of the show cause notice being time barred. Moreover, the penalty under section 78 can only be imposed when the demand of service tax is raised under section 73 (1) of the Finance Act, 1994 - In the present case there is no demand raised in the show cause notice or otherwise under Section 73 (1) of Finance Act, 1994. In this undisputed position also the penalty under section 78 is not sustainable. In view of the judgment in PUSHPAM PHARMACEUTICALS COMPANY VERSUS COLLECTOR OF C. EX., BOMBAY 1995 (3) TMI 100 - SUPREME COURT the show cause notice being time barred the impugned order is not sustainable. As it is stated above since the show cause notice has not raised the demand of service tax which appellant had admittedly paid, the issue of taxability is left open. Appeal allowed.

Summary

Issues involved:
The issues involved in the judgment are the demand of interest under Section 75 of Finance Act, 1994, imposition of penalty under Section 77 and Section 78, and the time-barred show cause notice for recovery of interest and penalties.

Demand of Interest and Penalties:
The appellant contested that service tax was not payable on leasing land due to unauthorized occupation by oil companies, and the bills raised were for compensation, not lease rent. The appellant argued that without a contract, service tax cannot be levied. The appellant also highlighted that the show cause notice for interest and penalties was issued after the normal period of 1 year, rendering it time-barred. The Tribunal found that the show cause notice did not demand service tax, and as the appellant paid the tax without protest, the Revenue did not demand it. The Tribunal held that the extended period for issuing the notice was not valid, making the penalties unsustainable.

Legal Precedent:
The Tribunal cited the case of Pushpam Pharmaceuticals Company vs. CCE, Bombay, to support the argument that the show cause notice being time-barred renders the impugned order unsustainable. The judgment emphasized that in taxation, suppression of facts must be deliberate, and mere omission does not constitute suppression. The Tribunal concluded that the penalties imposed were not justifiable due to the time-barred nature of the show cause notice.

Conclusion:
The Tribunal set aside the impugned order, ruling in favor of the appellant. The judgment highlighted that since the show cause notice did not raise a demand for service tax, which the appellant had paid, the issue of taxability remains open. The appeal was allowed based on the unsustainable nature of the impugned order, and the matter was remitted back for further consideration.