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2023 (8) TMI 605 - AT - Service TaxLevy of Service Tax - services of Management, Maintenance or Repairs to various department or not - SCN did not specify the appropriate clause under which the demand was proposed to be raised - invocation of extended period of limitation - HELD THAT - The Larger Bench decision of the Tribunal in the matter of M/S. LANCO INFRATECH LTD. AND OTHERS VERSUS VERSUS CC, CE ST, HYDERABAD 2015 (5) TMI 37 - CESTAT BANGALORE (LB) was not available at the time of passing of the impugned order and as such Adjudicating Authority did not have the benefit of examination and applicability of the same to the facts of the present case. Therefore the adjudicating authority must reconsider the entire matter based on the Judgments which were passed much after the impugned order passed by him. The appeal is allowed by way of remand to the Adjudicating Authority. Since this appeal is of 2013, the Adjudicating Authority shall pass denovo order within two months from the date of this order.
Issues involved:
The issue involves classification of services for service tax, applicability of extended period of limitation, and the specificity of clauses under Management, Maintenance or Repair service. Classification of services: The appellant argued that the services provided were classifiable under Commercial and Industrial Construction Service, not under Management, Maintenance or Repair service. The appellant contended that the demand was incorrectly confirmed under the latter category, citing a relevant judgment by the Larger Bench of the Tribunal. The appellant emphasized that the show cause notice did not specify the clause under Management, Maintenance or Repair service, rendering the demand vague and not confirmable. The appellant also highlighted that the activity undertaken for the government, related to providing drinking water, was not eligible for service tax, as per a Large Bench decision. The appellant asserted that the issue was debatable and had undergone litigation before being settled, thus arguing that the demand was time-barred. Applicability of extended period of limitation: The appellant contended that there was no fraud or misstatement committed, which would enable the department to invoke the extended period of limitation. The appellant pointed out that for the same activity, for another assessee, the department had taken a view that the activities were covered by a retrospective exemption and not eligible for service tax. The appellant argued that the issue being debatable, the demand should be considered time-barred. Specificity of clauses under Management, Maintenance or Repair service: The appellant raised the issue that the show cause notice did not specify the clause under Management, Maintenance or Repair service that was being invoked. Since this category has three different clauses for distinct activities, the lack of specificity in the notice was highlighted as a reason why the demand could not be confirmed. The appellant cited relevant judgments to support this argument. Decision: The Tribunal set aside the impugned order and remanded the matter to the Adjudicating Authority for reconsideration based on judgments passed after the original order. The Tribunal noted that the Adjudicating Authority did not have the benefit of examining the applicability of a relevant Larger Bench decision at the time of passing the original order. The appeal was allowed by way of remand, with the Adjudicating Authority directed to pass a denovo order within two months from the date of the Tribunal's order.
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