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TMI Blog2018 (4) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... een confirmed under the category of ‘Works Contract Service’ - when no demand was made from the Appellant under the category of ‘Works Contract’ in SCN, the adjudicating authority also could not have confirmed demand under said category - The adjudication order has thus traveled beyond the scope of SCN and therefore the demand is not sustainable. Extended period of limitation - Held that: - the Appellant in the year 2006 itself had surrendered the registration certificate on 15.03.2006 on the ground that their services do not fall under the category of “erection, commissioning and installation services ’. The department thus was in knowledge of the fact that the Appellant is not paying service tax on its activities - SCN was issued after 28 months of issuance of summon and 48 months of surrender of registration - extended period not invocable. Appeal allowed on merits as well on limitation. - ST/88581/2014 - A/85832/2018 - Dated:- 27-3-2018 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. C.J. MATHEW, MEMBER (TECHNICAL) Appearance Shri J. C. Patel, Advocate and Shri Anupam Dighe, Advocate for Appellant Shri M.K. Sarangi, Jt. Commr. (A.R) for respondent Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y keeping all the issues open which was not complied by the adjudicating authority. He submitted that the Appellant were undertaking turnkey/composite contracts of various government organizations which included supply of material. The composite contracts cannot be vivisected for charging service tax on some portion of contract as held by the Apex Court in case of Commissioner Vs. Larsen Toubro Ltd. 2015 (39) STR 913 (SC). That hence the period prior to 01.06.2007 is not liable for service tax. The Appellant did not render the service of erection, commissioning and installation on stand alone basis but executed works contract involving transfer of property in goods on which works contract tax was paid. The adjudicating authority erred in proceeding on basis that the Tribunal in its remand order has held that service tax was payable on erection, commissioning and installation and the same is final. The adjudicating authority failed to observe that when the Tribunal has kept all the issues open and when the law stands settled by the Hon ble Supreme Court s order the demands are liable to be set aside. The SCN was issued demanding service tax under the category of erection, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TRI), Vodafone Essar Digilink Ltd. 2011 (24) STR 562 (tri) which was upheld by Hon ble High Court of Rajasthan in 2013 (29) STR 229 (RAJ). 4. We have carefully considered the submission made by both the sides. And perused the records. We find that the Tribunal in its earlier order dt. 09.05.2013 had remanded the case keeping all the issues open. The relevant paras of the said order are as under : 6. In this scenario, we are of the considered view that the lower adjudicating authority has not considered all the relevant facts while deciding the issue. Accordingly, we set aside the impugned order and remand the case back to the original adjudicating authority for consideration of all the issues as discussed above and thereafter pass an order afresh after giving reasonable opportunity to the appellant of being heard. All issues are kept open. 7. Thus the appeal is allowed by way of remand. 5. We find from the above findings of the Tribunal that the Tribunal had kept all the issues open. In such case it was imperative for the adjudicating authority to decide the issue in the light of relevant judgments given by the Higher Forums. Even though the tribunal has g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ratio of said Tribunal order and in view of our findings we are of the view that the services of Works Contract rendered by the Appellant is in respect of Roads and thus not chargeable to service tax for the period after 01.06.2007. 6. Further we find that the show cause notice has been issued to the Appellant towards demand under the category of erection, commissioning and installation services whereas the demands for the period after 01.06.2007 has been confirmed under the category of Works Contract Service . We find that when no demand was made from the Appellant under the category of Works Contract in show cause notice, the adjudicating authority also could not have confirmed demand under said category. The adjudication order has thus travelled beyond the scope of show cause notice and therefore the demand is not sustainable which was raised in the show cause notice under the category of erection, commissioning and installation services . Our views are based upon the judgments in case of Commissioner Vs. Ballarpur Industries 2007 (215) ELT 489, CCE Vs. GAIL 2008 (232) ELT 7, Commissioner Vs. Reliance Ports and Terminals Ltd. 2016 (334) ELT 630. 7. We also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken. The factual scenario clearly goes to show that there was scope for entertaining doubt, and taking a particular stand which rules out application of Section 11A of the Act. 12. As far as fraud and collusion are concerned, it is evident that the intent to evade duty is built into these very words. So far as mis-statement or suppression of facts are concerned, they are clearly qualified by the word wilful , preceding the words mis-statement or suppression of facts which means with intent to evade duty. The next set of words contravention of any of the provisions of this Act or Rules are again qualified by the immediately following words with intent to evade payment of duty. Therefore, there cannot be suppression or mis-statement of fact, which is not wilful and yet constitute a permissible ground for the purpose of the proviso to Section 11A. Mis-statement of fact must be wilful. From the above judgment of the Hon ble Apex Court it is clear that in absence of any intention to evade payment of duty, it cannot be said that a person has any malafide intention. The facts of present appeal show that the non payment of service tax was informed by the Appellant and wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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