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TMI Blog2018 (12) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... on-imposition of interest on the demand confirmed and appropriated, under Section 75 of the Act. While the assessee appellant is in appeal against the portion of the order which has been confirmed against them by confirming the duty amount and interest and imposition of penalty under the provisions of Act and Service Tax Rules, 1994 (for short, Rules). 2. The facts of the case for disposal of these appeals are narrated as under: The appellant, is a provider of taxable service falling under the category of 'Consulting Engineering Service' and availing the Cenvat credit on the input service received by them for discharge of their output service tax liability. The appellant assessee was issued with two show cause notices proposing to deny Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing the Cenvat credit available to them on the ground that the assessee was not having the centralised registration and the same was obtained on 10th July 2007 and hence the availment of credit from various branch offices/site offices were not falling under the category of eligible Cenvat credit. It was submitted that the adjudicating authority has not considered the fact that they were having the centralised registration from the year 1997 itself. He relied on the various communications made to the department by them vide letter dated 6.4.1997 and 21st August 1997, wherein it was informed to the jurisdictional Assistant Commissioner regarding the intention of availing the centralised billing for all the branches and their site offices. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant, from the Jurisdictional Assistant Commissioner, to raise, collect and deposit service tax on behalf of all branches and/site offices. Thus, the fact was known to the department and, therefore, in view of the various decisions, the extended period of time is not available to them under Section 73(1) of the Act. (vi) That the demand itself is not sustainable, the question of payment of interest and imposition of penalty does not arises. 4. On the other hand, ld. DR supports the impugned order pertaining to the portion not confirmed by the adjudicating authority and non imposition of interest and penalties under the provisions of the Act and the Rules. 5. Heard the parties and considered the facts available on the appeal record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he department. Thus, we are of the considered view that in this case there is no question of suppression of fact and the demand, if at all is required to be raised by Revenue, it was to be done within normal period. After going through the show cause notice it is evident that the demand is hopelessly time barred and this ground itself the impugned order is not sustainable. In the second show cause notice dated 16.10.2007 is about short payment of service tax. The ld. Adjudicating authority had held that the demand is raised merely on the basis of difference in the figures available in the balance sheet when compared n ST-3 returns filed by the appellant assessee. The ld. Adjudicating authority after going through the various submissions mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in the case of the said assessee. It has also not been explained as to how these amounts constitute the value of taxable service. On the other hand, I find sufficient logic in the assessee's argument that the value of taxable service is ascertainable by adding amounts under "Advance receive against Job A/c" to the amounts received as shown in the "debtors A/c". In this respect the said assessee submitted a reconciliation statement for the period 2002-03 to 2005-06 duly certified by Chartered Accounts, B.M. Chatrath & Co. I would accept the statement for the purpose of quantification of Service Tax liability, if there be any. According to this statement, total amount received during the period 2002-03 to 2005-06 was Rs. 205,44,75,269/-. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. In this regard department in its appeal has stated that the adjudicating authority although has stated that the interest is not leviable on the amount of service tax of Rs. 1,14,23,111/- on due date and therefore interest is leviable to be paid by the appellant - Assessee under the provisions of the Act. In this case also the demand has been raised for the impugned period in year 2007 which is held to be time barred, as there was no suppression on the part of the appellant assessee. As the demand itself is not sustainable, there is no question of payment of interest and imposition of penalty.
8. In result, we dismiss the appeal filed by the Department and allow the appeal of the appellant assessee.
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