2015 (7) TMI 592 - AT - Service Tax

Extended period of limitation - bonafide belief - Penalty u/s 77 & 78 - Site Formation, Clearance. Excavation, earth moving and demolishing service - Held that - Payment was made by cheques dated 17.06.2006 and 21.06.2006 for the services rendered as per the work order dated 17.06.2006 and the bill in respect thereof was issued by the appellant on 18.08.2006. Thus, there is no doubt that the Show Cause Notice dated 05.05.2011 was issued within a period of five years, which is the extended period available for issuing the same in case of wilful mis-statement/suppression of facts on the part of the appellant with intent to evade payment of service tax. - Perusal of Section 73 ibid makes it clear that the only requirement for Revenue to be able to invoke extended period of five years is to establish suppression, collusion or wilful mis-statement with intent to evade service tax and the date on which Revenue discovered or became aware is not a variable in this equation. Perusal of Section 73 ibid makes it clear that the only requirement for Revenue to be able to invoke extended period of five years is to establish suppression, collusion or wilful mis-statement with intent to evade service tax and the date on which Revenue discovered or became aware is not a variable in this equation. - impugned order clearly notes that the said amount was not reflected in the ST-3 return which itself is sufficient to establish suppression of facts on the part of the appellant to evade service tax. Further, the details about the said payment received were never submitted by the appellant during the enquiry. Indeed, the said details were, (had to be), obtained from the service recipient (SICCL). It is on record that Investigating Officer asked the appellant vide letter dated 02.02.2010 to submit the facts and figures, copies of work order, bank statement, etc., but the same were never supplied by the appellant and it was only then that the Investigating Officer called for the information/ details from the service recipient, SICCL. Mere perusal of the definition vis-a-vis the description of work (service) done by the appellant does not leave any scope to even entertain a reasonable doubt, leave alone reasonable belief, that the service rendered may not be covered under the said definition. Mere non-mention of the particular clause of the definition in the Show Cause Notice when the definition is so graphically clear could in no way jeopardise the appellant s ability to defend itself and the defence submitted by the appellant is ample evidence thereof and therefore the same (i.e., such non-mention) is inconsequential. - there was no scope for any confusion even with regard to the said exclusion. It needs to be mentioned that the bona fide belief is not a hallucinatory opinion of an uninformed person. Exemption under Notification No.17/2005-ST, dated 07.06.2005 that is applicable to the site formation and clearance, excavation and earthmoving and demolishing and such other similar activities referred to in sub-clause (97a) and (zzza) of clause 105 of Section 65 of the Act. provided by any person in the course of construction of roads, airports, railways, transport terminals, bridges, tunnels, dams, ports or other ports. No elaborate discussion is needed to state that the service rendered by the appellant was not in the course of construction of roads, airport, railways, transport terminal, bridges, tunnels, dams, ports or other ports and therefore, the said Notification (No.17/2005-ST) is clearly not attracted in this case. - No infirmity in the impugned order warranting appellate intervention - Decided against assessee.

Issues Involved:
1. Time-barred demand and wilful mis-statement or suppression of facts.
2. Validity of the Show Cause Notice.
3. Classification of the service rendered.
4. Authenticity and receipt of the work order.
5. Suppression of facts and non-reflection in ST-3 returns.
6. Bona fide belief regarding non-taxability.
7. Applicability of exemption under Notification No. 17/2005-ST.
8. Issuance of multiple Show Cause Notices for the same period.

Detailed Analysis:

Issue 1: Time-barred demand and wilful mis-statement or suppression of facts
The appellant contended that the demand was time-barred as there was no wilful mis-statement or suppression of facts. However, the tribunal held that the Show Cause Notice was issued within the extended period of five years, permissible in cases involving wilful mis-statement or suppression of facts with intent to evade service tax. The tribunal emphasized that the date on which the Revenue became aware of the facts was irrelevant and that the extended period was justifiable given the appellant's suppression of facts.

Issue 2: Validity of the Show Cause Notice
The appellant argued that the Show Cause Notice was invalid as it did not specify under which specific clause of Section 65 (97a) the service was covered. The tribunal found this argument inconsequential, noting that the definition of "Site Formation and Clearance, Excavation, and Earthmoving and Demolition" was clear and that the appellant's ability to defend itself was not compromised by the non-mention of a specific clause.

Issue 3: Classification of the service rendered
The appellant claimed that the service rendered was agricultural land levelling, excluded from the purview of Section 65 (105) (zzza) read with Section 65 (97a). The tribunal rejected this claim, stating that the work was related to a housing project and not agriculture. The tribunal clarified that the service did not fall under the exclusions provided in the definition of site formation services.

Issue 4: Authenticity and receipt of the work order
The appellant disputed the authenticity of the work order dated 17.06.2006. The tribunal found that the appellant issued a bill corresponding to the work order and received payments as per the details in the work order, establishing the authenticity and receipt of the work order.

Issue 5: Suppression of facts and non-reflection in ST-3 returns
The tribunal noted that the appellant did not reflect the received amount in its ST-3 returns and failed to provide details during the investigation, which were obtained from the service recipient. This non-disclosure was deemed sufficient to establish suppression of facts with intent to evade service tax.

Issue 6: Bona fide belief regarding non-taxability
The appellant claimed a bona fide belief that the service tax was not leviable. The tribunal dismissed this claim, stating that the definition of the service was clear and that mere utterance of "bona fide belief" without a reasonable basis did not constitute a valid defense.

Issue 7: Applicability of exemption under Notification No. 17/2005-ST
The appellant argued for exemption under Notification No. 17/2005-ST. The tribunal found the exemption inapplicable as the service was not provided in the course of construction of roads, airports, railways, etc., as specified in the notification.

Issue 8: Issuance of multiple Show Cause Notices for the same period
The appellant contended that another Show Cause Notice covering the same period had been issued, making the current notice invalid. The tribunal clarified that the other notice related to different transactions and did not cover the present service, thus the issuance of multiple notices was justified.

Conclusion:
The tribunal upheld the adjudicating authority's order, confirming the service tax demand along with interest and penalties. The appeal was rejected, and the tribunal found no infirmity in the impugned order warranting appellate intervention. The judgment was pronounced in the open court on 30.6.2015.

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