9911796707
TMI Blog2019 (5) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... nicipal Corporation of Greater Mumbai (referred as MCGM), they were not reconditioning any goods equipments, maintenance or management of any immovable property etc., hence they did not qualify as provider of taxable service. On verification of various documents and work order submitted by the respondent during the course of investigation Service tax authorities were of the view that services provided against work order as detailed below will fall within category of taxable service defined as "Management, Maintenance and Repair Services." S No Work Order No Scope of Work Work order Cost 1 Dy. Ch Eng./10141Rds & Tr dtd 23.01.2008 Widening and improvement of various roads to eastern suburbs in S Ward (s-1) 98525578 2 Dy. Ch Eng./10141Rds & Tr dtd 23.01.2008 Widening and improvement of various roads to eastern suburbs in S Ward (s-2) 68965810 3 Dy. Ch Eng./170/swd/es dtd 09.04.2008 ES-22 Training and widening of boundary nalla 101696495 4 CE/PD/7166/II dtd 06.11.2006 Repair to Dr Babasaheb Ambedkar Municipal Maternity Home. 13111761 5 CE/PD/425/II dtd 28.07.2006 Beautification of Shyam Nagar Talao 6 Dy. Ch Eng./1623/swd/es dtd 16.05.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 78 of the Act, 1994 should not be imposed on M/s Navdeep Construction Company for failing suppressing the value of taxable service with intention to evade the Service Tax. 2.4 The show cause notice has been adjudicated by the Commissioner, as per his order referred in para 1, supra. 2.5 Aggrieved by the order, revenue has preferred this appeal. In response to the appeal, respondent have filed the cross objection. 3.1 In their appeal, revenue has assailed the impugned order and stated as follows: i. The adjudicating authority has in his order merely harped on the fact that the charges in the notice were scantily drafted while proposing that services provided by the respondent were taxable as Management, Maintenance or Repair Services. The fact that the said notice was not elaborate cannot be a reason to drop the same. ii. Te adjudicating authority erred in merely examining the nature of activities mentioned in contracts listed from 1 to 12 of the table appearing at page of the impugned order. Adjudicating Authority has after examination concluded that the activities undertaken would not fall within the scope of Management, Maintenance or Repair Services. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that were produced before him during the course of adjudication proceedings. iii. He has failed to appreciate that apart from the contracts mention in the table in show cause notice there were large number of other contracts. No findings have been recorded contract wise for all the contracts. iv. Adjudicating authority has held that extended period of limitation would not be applicable in the present case. The said finding is contrary to the facts available on record. The case came to light only as result of investigations undertaken by the anti evasion. All the documents were either called for from the respondents on summon or recovered or resumed from them. Since the information with regards to provisioning of the taxable service was never disclosed to the department respondents were definitely guilty of suppressing the relevant facts hence the extended period of limitation was definitely applicable in the facts of the present case. v. The services provided by the respondents would merit classification under category of Management, Maintenance or Repair Services, and hence they are liable for payment of service tax. Sufficient evidence to that effect has been reproduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentative appearing for revenue was directed by us to produce the complete adjudication file and the review file for examination. However even after adjournment of the matter twice the same could not be produced. Learned Authorized Representative produced a letter dated 12.12.2018 of the Additional Commissioner 9Review) CGST Mumbai West stating that the said files cannot be traced. Said letter of the Additional Commissioner is reproduced below: 5.3 Since the revenue has failed to produce the files which are not traceable, we are not in position to accept the contention of the revenue that there were 94 contracts under consideration in show cause notice. Hence the matter needs to be limited to the contracts referred to in show cause notice. 5.4 Respondents had in their response to show cause as recorded by Commissioner in para 38.1 to 38.6 of his order, submitted the detail service rendered by respondent to MCGM year wise and service wise. The detailed chart produced by the respondents is reproduced below: On the basis of the above charts respondents had contended before the Commissioner that they had during the period of demand received payments against the services which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that the SCN is egregious and improper in not considering and discussing on the record proper, adequate and reasonable material and evidence in order to support and sustain the allegation made resulting in the liability of the Noticee to ST under MMRS. The issue required for determination at '(1)' above, is thus decided accordingly." 5.8 Issue (ii) is discussed in para 78 to 81 and in para 81 following is recorded: "Hence, for non-observation of the accounting principles and the resultant violation of the provisions of ST law, in this regard, the SCN would be liable to be set aside. In this background and situation, in fact, I agree with the Noticee's submission that as held by the various Hon. Courts and Tribunals that when allegation is based only on financial accounts and figures mentioned in Balance Sheet are taken for the purpose of charging ST, such demand is bad and cannot sustain in the eye of law. The issue required for determination at '(2)' above, is thus decided accordingly." 5.9 Issue (iii) is discussed in para 82 to 86 and Commissioner in para 82 against invocation of extended period. 5.10 Revenue has not challenged the findings recorded by the commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
