9911796707
TMI Blog2018 (12) TMI 1365X X X X Extracts X X X X X X X X Extracts X X X X ..... ation service - Government of India, Ministry of Finance had a doubt till the issuance of Circular dated 29.10.2006 whether service tax was leviable on the services of site formation - Held that:- In so far as the order which took converse view and assailed by the Assessee in other matters are concerned, there the consideration ends with a finding on nature of contract. The CESTAT holds that contract of Assessee with WCL is for a site formation. There the provisions of Section 80 of Finance Act or then circular dated 12.11.2007 are totally omitted from consideration. The said order, therefore, also show non application of mind. Extended period of limitation - Section 73[1] of the Finance Act, 1994 - Held that:- Impact of “confusion” abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrary views and necessary application of mind is lacking, matters need to be remanded. We therefore, find it sufficient to reproduce the question of law as formulated in Central Excise Appeal No. 11/2014 on 23.07.2015, for the purpose of present discussion. The question reads as under : Whether the penalty under Section 77 of the Finance Act, 1994 could have been imposed when the Government of India, Ministry of Finance had a doubt till the issuance of Circular dated 29.10.2006 whether service tax was leviable on the services of site formation ? 4. In Central Excise Appeal No.11/2014, the department is before this Court assailing the view in favour of assessee taken by the CESTAT. In Appeal Nos.15/2014, 13/2014 and 09/2014, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of contention between the contractors like the Assessee and employer WCL. WCL was seeking guidance from Ministry and necessary clarification has been issued for the first time on 12.11.2007. The Assessee therefore, contend that on 12.11.2007 the position was not clear and hence, charging penalty upon them is unjust. Additionally, it is pointed out that this challenge ought to have been looked into by the CESTAT first, and CESTAT has totally overlooked it. 8. In Appeal No. 11/2014, the CESTAT has upheld penalty and relevant observations therein are contained in paragraph nos. 7 and 8. Learned Counsel for the Department has challenged the findings recorded therein as an indication of nonapplication of mind. They also add that if the clarif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 4/2015 and 7/2012, apart from the question of law in Central Excise Appeal no.11/2014, about confusion about nature of activity i.e. cargo handling or transporter and its impact, the department has raised one more question and that question reads as under : Whether the CESTAT in facts and circumstances of the case is justified in reversing the invocation of extended period of limitation under Section 73[1] of the Finance Act, 1994 ? 12. Again after hearing learned counsel for the parties, we find that the very confusion claimed by Assessee is being relied upon by the department to seek extended period of limitation. Perusal of the impugned order reveals that in paragraph no.6.8, CESTAT has made reference to problems faced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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