2024 (4) TMI 231 - AT - Service Tax

Extended period of limitation - suppression of facts - Cleaning Housekeeping services - Cooking services - Fleet Management services - period of dispute is 2011-12 2012-13 - HELD THAT - The appellant has regularly filed the returns. Further, it is found that there is no allegation of any misstatement or suppression in the returns. It is also not the allegation that the appellant has not disclosed their full turnover in the returns. The only allegation of Revenue in the SCN is that they came to know the fact of non-payment of service tax on the services under dispute only during the course of detailed investigation undertaken, and further have stated that under the self-assessment procedure it is imperative that the assessee should have scrupulously discharged the service tax liability. Thus, it is evident that the SCN has been issued by way of change of opinion and no case of suppression, misstatement, fraud or any contemptuous conduct is made out. Therefore, the Department has not made out any case for invoking extended period and thus, the appellants succeed on the issue of limitation. It is noticed that for the similar services earlier provided by M/s Junior Varsity and M/s K12 Educational Management (same group companies), the department had bundled the services on the ground that these services are provided to same recipients and the classification under three different heads is erroneous as services are provided to single entity or service recipient. Thus, it appears, prima facie, that there is no consistency in classification of services by the Revenue. However, having found that the appellants have a strong case on limitation, there is no need to consider submissions on merits. The extended period of limitation is not invokable - the impugned order is set aside - appeal allowed.

Summary

Issues involved:

1. Taxability of cooking services.
2. Taxability of cleaning services.
3. Taxability of fleet management services.
4. Demand under Reverse Charge Mechanism.
5. Invocation of extended period of limitation.

Summary:

1. Taxability of Cooking Services:
The appellant argued that their cooking services do not fall under the definition of 'outdoor caterer' as they only provide manpower for cooking, with all groceries and gadgets supplied by the recipient institutions. This view is supported by the Tribunal's rulings in Rajiv Kumar Gupta vs CCE, Jaipur and other cases, where similar setups were not considered as outdoor catering services.

2. Taxability of Cleaning Services:
The appellant contended that their cleaning services provided to educational institutions do not fall under 'cleaning activity' u/s 65(24b) as they are non-commercial buildings. This argument is supported by Tribunal decisions in Maltanb Construction Engineers Pvt Ltd vs CCE & ST, Coimbatore and Bombay Intelligence Security (India) Ltd vs CST, Mumbai-II, which held that cleaning services for non-commercial establishments are not taxable.

3. Taxability of Fleet Management Services:
The appellant provided drivers and cleaners, which they argue is not taxable under 'Management, Maintenance or Repair service' (MMRS). They also cited Notification No.14/2004-ST, which exempts 'Business Auxiliary services' related to education. The Tribunal had previously set aside a similar demand under 'Business Support service' (BSS) for Junior Varsity.

4. Demand under Reverse Charge Mechanism:
The appellant claimed that the demand for services like GTA, Legal, and Works Contract under Reverse Charge Mechanism was raised without proper verification of records, making it unsustainable.

5. Invocation of Extended Period of Limitation:
The appellant argued that the demand raised after 39 months by invoking the extended period of limitation was unjustified as they were registered with the department and had been compliant. The Tribunal found no suppression, misstatement, or fraud, indicating that the SCN was issued by way of change of opinion. Hence, the extended period of limitation was not invokable.

Conclusion:
The Tribunal allowed the appeal on the ground of limitation, setting aside the impugned order and entitling the appellant to consequential benefits. The Tribunal did not delve into the merits of the case, as the limitation issue was decisive.