2018 (7) TMI 1789 - AT - Service Tax

Extended period of Limitation - malafide intention on the part of the assessee - Repair and Maintenance Service - Held that - The reasons and circumstances for invocation of the extended period as also for imposition of penalty u/s 78 are identical i.e. a malafide mind - The appellate authority have already taken a view in favor of the assessee in respect of penalty it was not open to the appellate authority to hold to the contrary for invocation of longer period. Otherwise also the appellant is a labourer and there being a lot of confusion in the field of service tax would not be aware of the service tax liability - Inasmuch as the demand stands confirmed by invoking the longer period the same is not sustainable but for the period falling within the limitation. The demands beyond the normal period of limitation set aside - matter remanded to the Original Adjudicating Authority for re-quantification of demand if any falling within the normal period of limitation - appeal allowed by way of remand.

Summary

Issues:
Demand of Service Tax under 'Repair and Maintenance Service'; Invocation of extended period of limitation; Applicability of Small Scale Exemption Notification No.6/2005.

Analysis:
The judgment addresses the issue of a demand of Service Tax amounting to ?3,25,663 confirmed against the appellant under the category of 'Repair and Maintenance Service'. The appellant's representative argued that the appellant was actually providing construction services and not the services in question but did not challenge the order on those grounds. The contention was primarily against the invocation of the extended period of limitation. The Commissioner (Appeals) acknowledged no malafide intent on the part of the assessee and dropped the penalty. However, the Commissioner upheld the extended period invocation citing malafide intention. The appellant's representative argued against this inconsistency, stating that if no malafide was found, the extended period should not have been upheld. The Tribunal agreed with this argument, noting that the reasons for invoking the extended period and imposing penalties were the same - a malafide mind. Given the confusion in the field of service tax and the appellant being a laborer, unaware of service tax liability, the Tribunal held the demand confirmed by invoking the extended period as unsustainable, except for the period within the limitation.

The Tribunal also addressed the issue of the applicability of the Small Scale Exemption Notification No.6/2005. The appellant claimed that being covered under the said notification, no duty liability should arise. After hearing the arguments, the Tribunal found merit in the appellant's contention. It was noted that the reasons for invoking the extended period and imposing penalties were based on malafide intent, and since the appellate authority had already ruled in favor of the assessee regarding penalties, it was inconsistent to rule otherwise for the extended period. The Tribunal highlighted the appellant's lack of awareness due to being a laborer and the confusion in the service tax field. Consequently, demands beyond the normal limitation period were set aside, and the matter was remanded to the Original Adjudicating Authority for re-quantification of any demand falling within the normal limitation period, considering the applicability of the small scale exemption notification during that period.

In conclusion, the appeal was disposed of by setting aside demands beyond the normal limitation period and remanding the matter for re-quantification of any applicable demand within the normal period, with a specific focus on the small scale exemption notification's relevance during that time.