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TMI Blog2021 (4) TMI 811X X X X Extracts X X X X X X X X Extracts X X X X ..... under Finance Act, 1994. In view of the judgment in COMMISSIONER OF C. EX., CUS. ST., DAMAN VERSUS NR. AGARWAL INDUSTRIES [ 2014 (5) TMI 603 - GUJARAT HIGH COURT] it is settled that if on any issue there is a legal dispute which involved interpretation of law the mala-fide intention or suppression of fact with intent to evade payment of service tax cannot be attributed to the assessee - On this ground also the extended period of demand was not invokable. As per the facts in the present case the period of dispute i.e. 2005-06 to 2009-10 and show cause notice was issued on 19.05.2011. It is also observed that the appellant has filed their ST-3 return covering the period October 2009 to March 2009 on 27.04.2010. As per the facts the entire demand is beyond the normal period and falling under the extended period of limitation - entire demand is time barred - appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 10098 of 2013 - Final Order No. A/ 11660 /2021 - Dated:- 19-4-2021 - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR And HON'BLE MEMBER (TECHNICAL), MR. RAJU Shri Jigar Shah, Advocate for the Appellant Shri S. N Gohil, Superintendent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the gross amount charged by the service provider for such service provided or to be provided by him. In the present case the salary/wages is not the service charges for the services provided by them, whereas the same is remuneration earned by the labourers by providing their service to the respective company. The service of appellant is limited to providing the man power to the company for which they are paid 10% commission which is the consideration against the service provided by the appellant, therefore, in terms of Section 67 also the entire amount i.e. Commission, Salary and Wages cannot be alleged as the gross value chargeable to service tax. He submits that the issue is settled in favour of the appellant in the following judgment: Malabar Management Services reported in 2009 (9) STR 483 (Tri. Chennai).This decision has been held by the Hon ble Supreme Court reported in 2019 (22) GSTL J56 (SC). 2.1 He submits that not only the issue settled in the above case but this Hon ble Tribunal also followed the decision of Malabar Management Services in following case: Modern Business Solution reported in 2019 (24) GSTL 353 (Tri.- Ahmd)(Tribunal order dated 18.07.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court Judgment in case of Ratan Melting Wire Industries reported in 2008 (231) ELT 22 (SC) wherein it was held that when the law is declared by the Hon ble High Court or Hon ble Supreme Court then on the same point if there is any circular issued by the revenue administration then the circulars are to be ignored. With his above submission he prays for setting aside an order on merit as well as on limitation. 3. On the other hand Shri. S. N. Gohil Learned Superintendent (Authorized Representative) appearing on behalf of the Revenue reiterates the finding of the impugned order. He also filed a detailed written submission dated 16.03.2021 which is taken on record. He placed reliance on the following circulars and various judgments:- 1. Circular No. B1/6/2005- TRU dated 27.07.2005 2. Circular No. B1/4/2006- TRU dated 19.04.2006 3. 2019 (25) GSTL 513 (Mad)- CCE , Puducherry Vs. CESTAT, Chennai 4. 2016 (46) STR 491 (Tri. Mum)- Sai Labour Contractor Vs. CCE, Aurangabad 5. 2017 (47) STR J45 (SC)- Sai Labour Contractor Vs. Commissioner 6. 2006 (3) STR 655 (Tri- Del)- J J Enterprises Vs. CCE, Raipur 7. 2016 (42) STR 561 (Tri- Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le on its part to hold a belief that the Cenvat credit was available. It was only subsequently that the issue came to be decided against him. It was hardly a relevant aspect. The assessee acted bona fide and in honest belief that Cenvat credit was available. In the facts and circumstances, no intention could be ascribed on the part of the assessee to evade the duty or suppress any fact. In that view, there was no justification in invoking the longer period of limitation beyond the normal period as the conditions therefore were not satisfied. The question formulated does not raise any substantial question of law in view of above facts, findings and discussion. Appeal is devoid of merit. The Hon ble Gujarat High Court in another case considering on issue of limitation observed as under: 4. Learned counsel Mr. Oza also pointed out to us that the decision in M/s. Marsha Pharma Private Limited had been carried in appeal by the Department in Tax Appeal No. 2399 of 2009 and this Court, vide its order dated 30th September, 2010, chose not to entertain the appeal on the ground that the Tribunal committed no legal error in holding that the extended period of limitation could not h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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