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TMI Blog2019 (3) TMI 1279X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Mohammad Altaf, Assistant Commissioner (AR) for Respondent ORDER Per: Anil G. Shakkarwar The present appeal is arising out of Order-in-Appeal No. GZB-EXCUS-000-APP-31-14-15 dated 14/08/2014 passed by Commissioner of Customs, Central Excise Service Tax (Appeals), Ghaziabad. 2. The brief facts of the case are that the appellant were registered with Service Tax Department for Business Auxiliary Service. During the course of scrutiny of the records of the appellant, revenue came to know that appellant entered into a contract with M/s (n) Code Solution that appellant was to act as single point contract with the applicant and to attend all identification process and to verify stipulated documents etc. M/s (n) Code Solution was certifying authority under Indian Information Technology Act, 2000 to provide Digital Signature Certificates . It appeared to revenue that the said work undertaken by the appellant as per agreement entered into with M/s (n) Code Solution was Business Support Services. Therefore, appellant were issued with a show cause notice dated 19.10.2012 raising a demand of ₹ 8,95,603/- of Service Tax alleging that the appellants were providin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted by learned A.R. recorded hereinabove. Therefore, we do not find the transaction between the appellant and M/s (n) Code Solution to be of sale and purchase particularly because appellant was required to conduct and carry out his responsibility in accordance with the requirements and directions by M/s (n) Code Solutions and such transaction cannot be described as sale. We, therefore, do not find any merit in the present appeal. We leave Time Bar aspect open. 6. Therefore, the appeal filed by the appellant is rejected by holding the impugned Order-in-Appeal. (Pronounced in Court on -/08/2018) -Sd/- (Anil G. Shakkarwar) Member (Technical) -Sd/- (Archana Wadhwa) Member (Judicial) Per: Archana Wadhwa On going through the order proposed by my learned brother, I find myself in agreement with the conclusions arrived at by him as regards the merits of the case. However, as learned brother has held that We left Time Bar aspect open , I have different views inasmuch as every issue raised before the Tribunal are required to be dealt with, especially when the demand is being upheld on merits and the time bar issue cannot be left open ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppressed and property accounted for. All the related documents like audited Balance Sheet etc. Were submitted with other taxation authorities like Income Tax etc. Hence, we submit that there is no reasonable reason behind the allegation /finding that we had suppressed material fact with an intention to evade the service tax. In support of submission, we are relying upon the under noted Rulings In support of their submissions they had also referred to the various decisions including the Tribunal s decision in the case of Home Engineering Works reported as 2007 7 S.T.R 546 (Tri.-Mumbai) laying down that when there is no positive allegations of suppression or any miss-statement on the part of the appellant with an intent to evade duty, longer period would not be applicable. Appellants have reflected their entire activity in their statutory documents required to be maintained by them in the ordinary course of their busyness and there was enough reason for the appellant to entertain a bona fide belief that the services rendered by them are not covered by the port services. The Tribunal held that extended period of limitation is not available to the Revenue. To the similar effect i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Appellant Authority lead me to observe that the extended period of limitation stands invoked by both the authorities by simply observing that they had have suppressed the value. Apart from this simple observation made by both the Authorities, neither of them have referred to any evidences on record to show that such non-payment of Service Tax was with a mala tide intention. Once the appellants have reflected all the transactions in the balance sheet as also raised the invoices for the same, can it be said that there was any suppression on their part. The appellants have also referred to the correspondence between Commissioner and the Appellants as also between them and the office of Controller of Certify Authority. They have also contended that all the related documents like audited balance sheet was submitted with the other taxation authorities like Income Tax. If there would have been any mala fide intention on the part of the appellant, they would not have maintained all the statutory documents like balance sheet and would not have filed the same with their Income Tax authorities. The said Act of the appellant admittedly leads to their bona fide and in the absence of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be left open, as held by Learned Member Technical. Or (ii) Whether the demand has to be held as time barred and the penalty has to be set aside, as observed by Member Judicial. (Pronounced in Court on 14/9/2018) -Sd/- (Anil G. Shakkarwar) Member (Technical) -Sd/- (Archana Wadhwa) Member (Judicial) Mr. V. Padmanabhan, Member (Technical) Shri Rajesh Chhibber, Advocate for Appellant Shri Gyanender Kumar Tripathi, Deputy Commissioner (AR), for Respondent Date of Hearing/Decision: 08/02/2019 Per: V. Padmanabhan, The present appellant has challenged the levy of service tax along with interest and penalty. The learned Commissioner (Appeals), in her Order-In-Appeal has upheld the demand of service tax along with interest and penalty. The Regular Bench heard the appellant and considered the issue. Both the Members of the Bench concurred in their view that the demand for service tax confirmed by the first Appellate Authority is required to be upheld, on merit. However, there was difference of opinion on the connected issue of time bar. The learned Member (Technical), in his order dated 07.08.2018 expressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he penalty has to be set aside, as observed by Member Judicial. 2. The Hon ble third Member has expressed his opinion that the time bar issue cannot be left open and is required to be decided and a finding is to be rendered. The Hon ble third Member has also further opined that Member (Technical), should record his views on the question of time bar and penalty. 3. Accordingly I proceed to decide the matter. I have gone through the findings recorded by learned Member (Judicial) in the foregoing paragraphs. I note that learned Member (Judicial) have recorded that the appellants had reflected all the transactions in the balance sheet as also raises invoices for the same and therefore, it cannot be held there was any suppression on the part of the appellants. Further, appellant has also referred the correspondence between Commissioner and appellants as also between appellant and Office of Controller of Certify Authority, Ministry of Communication Technology. It was, further, recorded that all the related documents like audited balance-sheet was submitted by the appellant to other Tax Authorities like Income Tax, I note that the learned Member (Judicial) have therefore, held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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