2019 (7) TMI 572 - AT - Service Tax

Extended period of limitation - validity of subsequent SCN issued by invoking extended period - cum-tax benefit - HELD THAT - The Appellant is entitled to cum duty benefit - there is a small difference in the taxable amount shown by the Appellant on which they have paid service tax on the gross amount as they have calculated the tax on cum duty basis. It is an admitted fact that the Appellant has not collected Service Tax separately and accordingly, the Commissioner (Appeals) has rightly allowed the cum duty benefit. Under the facts and circumstances that the Department was having knowledge of the affairs of the Appellant in view of the earlier show cause notice dated 22.10.2012, the subsequent show cause notice is held to be bad invoking the extended of limitation. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Invocation of extended period of limitation for issuing show cause notice
2. Allowance of cum-tax benefit

Analysis:
1. The appeal raised two main issues for consideration. Firstly, whether the extended period of limitation was rightly invoked for issuing the show cause notice. Secondly, whether the Commissioner (Appeals) correctly allowed the cum-tax benefit.

2. The appellant, engaged in providing services as a commission agent, received commission from a company. The Directorate General of Central Excise Intelligence (DGCEI) discovered that the appellant had not paid service tax on the commission received. The first show cause notice was issued in 2012, and the matter was later settled with the Settlement Commission. Subsequently, the appellant deposited service tax for a later period. Show cause notices were issued for subsequent periods, and demands were confirmed without allowing the cum-duty benefit.

3. The appellant, aggrieved by the decision, appealed to the Commissioner (Appeals). The Commissioner allowed the cum-duty benefit but later confirmed the demand without considering the benefit. The Commissioner also imposed penalties under different sections of the Finance Act, 1994.

4. The appellant challenged the decision before the Tribunal, arguing that they had deposited service tax as per their calculation and that subsequent show cause notices were invalid due to the earlier notice. The appellant also contended that the Commissioner erred in not allowing credit for all tax payments made, which would have reduced the outstanding tax liability.

5. The Revenue supported the impugned order, citing an audit report that claimed the appellant had not paid service tax on the correct amount. However, the appellant disputed this claim.

6. After considering the arguments, the Tribunal held that the appellant was entitled to the cum-duty benefit. It also deemed the subsequent show cause notice invoking the extended period of limitation as invalid due to the earlier notice. The Tribunal noted a minor discrepancy in the taxable amount but affirmed that the Commissioner rightly allowed the cum-duty benefit.

7. Consequently, the Tribunal set aside the impugned order, allowing the appeal and granting the appellant the cum-duty benefit. It declared the show cause notice invoking the extended period of limitation as invalid and directed the appellant to receive consequential benefits in accordance with the law.