9911796707
TMI Blog2021 (9) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... r checking of tickets of the Metro Railways. But, no investigation was taken. Therefore, the Adjudicating authority passed the order on a conjecture that the appellant had also function not merely on watch and ward of checking tickets, which cannot be accepted. Extended period of limitation - HELD THAT:- It is found fhe Adjudication Order that the Adjudicating authority had merely observed that the applicant is a very old Registered Firm and they have not discharged their service tax liability properly and therefore the extended period of limitation would be invoked. There is no material available on record to invoke the extended period of limitation. Apart from that, a part of demand is liable to be dropped on merit and therefore the extended period of limitation cannot be invoked for the balance amount. Hence, the balance amount of tax is liable to be set aside on limitation. The expressions every person who is liable to pay duty under this Act or Rules made thereunder, and has collected any amount in excess of the duty in Section 11D of the Act make it clear that the said provision would be applicable where the person is liable to pay duty and collected any amount in-excess of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Service Tax of ₹ 53,65,724.00 along with interest and imposed penalty on the appellant under Finance Act, 1994 for the period from September 2001 to May 2005. There is a further demand of ₹ 3,37,538.00 under Section 11D of the Central Excise Act, 1944. Hence, the appellant filed this appeal. 3. The Learned Advocate on behalf of the appellant submitted that admittedly the appellant rendered the taxable services in the nature of Security Agency and various non-taxable services such as Manpower Supply, Cleaning, Washing, Sweeping, Gardening, Watch & Ward (Checking Assistance) to Metro Railways etc. It is submitted that the demand of Service Tax is related to Watch & Ward Service for checking of the tickets to Metro Railways and others which cannot be covered under the "Security Agency Service". It is well known that the Security of the Metro Railways is controlled by the Railway Police. In support of its contention, the Learned Counsel drew the attention of the Bench to the Certificate dated 04.12.2008 of the Chief Operation Manager of Metro Railways and Letter of Acceptance dated 07.06.2001 of the Metro Railways. It is also contended that the Adjudicating authority ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on- Taxable Services and Section 11D of the Act, 1944 would be applicable. 5. Heard both sides through video conferencing. 6. After hearing both the sides and on perusal of the records, we find from the Adjudication Order that the appellant was engaged in providing services related to Security, Manpower Supply for Cleaning, Washing, Sweeping, Gardening, Up keeping, Watch & Ward, Grass Cutting, Checking, Mechanised Cleaning, Driving, Office Assistance etc. They were registered with the Service Tax Department under the category of "Security Agency" which was introduced in the Service Tax net on 16.10.1998 vide Clause 94 of Section 65 of Chapter -V of Finance Act, 1994 as amended. The term "Security Agency" is defined in Section 65(94), as it stood during the relevant time is as below :- " Security Agency" means any person engaged in the business of rendering the services relating to the security of any property, whether moveable or immovable, or of any person, in any manner and includes the services of investigation, detection or verification, of any fact or activity, whether of a personal nature or otherwise, including the services of providing security personnel". 7. The ingre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s admitted that he made several correspondences with Metro Railway authority for payment of Service Tax. Again the very word "Watch and Ward" used by the said Noticee No. 1/Metro Railway Authority in the relevant bills does not make it sure that their personnel did not do the job of security work. Their functions cannot be restricted to checking of tickets of the passengers only. The personnel deployed by them must have done the overall supervision of passengers including watching the property of Metro Railway and watching that any passenger cannot make any damage to any property. The personnel deployed must have under taken the job related to security of Metro Property." 10. We find from the statement dated 10.03.2007 of the Proprietor of the appellant that the appellant had been providing up-keeping and checking assistance service ( i.e. Watch & Ward Service) since early part of 2001, the copy of the Work Order has been tendered. The appellant produced the Certificate dated 04.12.2008 of the Metro Railways before the Tribunal clarifying the services rendered by the appellant to the Metro Railways, which reads as under :- "This is to certify that M/s. General Security & Informa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that when Invoice does not show the details, then some of the receivers of service could have been detected and details obtained as to the nature of service received by them. No investigation whatsoever has been conducted in this case. The lower authority has chosen to presume that the security service has been rendered even though the invoices did not give the name of the service. (b) In the case of Tejwal Dyestuft Industries Vs. Commr. Of C. Ex, Ahmedabad 2007 (216) ELT 310 (Tri-Ahmd.) the Tribunal observed that having obtained the confessional statement the Revenue Officer did not carry out the detailed investigation into the relevant aspects of the case. Recording of the confessional statement would not put to an end of the investigation and the Revenue Officer should have careful to ensure that they are not tricked out of a regular and detailed investigation by making strategic confession which are retracted by preparing affidavit soon after they are made and such affidavit are again strategically withheld from the Revenue Officers. 13. In the present case, we find that the appellant in the statement during the investigation categorically stated that watch and ward service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession, mis-statement etc. for invocation of extended period of limitation, would be applicable for entire proceedings and not limited to particular period. In the case of Rashmi Marketing Vs. Commissioner of Central Excise & Customs & Service Tax, Nagpur 2019 (26) GSTL -244 (Tri- Mum) it has been observed that suppression of facts can be alleged for the whole period or it may not exist altogether. In the case of Continental Foundation Joint Venture Vs. Commissioner of Central Excise, Chandigarh 2007 (216) ELT 177 (SC), it has been observed by the Hon'ble Supreme Court that the expression "Suppression" has been used in proviso to Section 11A of Central Excise Act, 1944 to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with intent to evade payment of duty. An incorrect statement cannot be equated with willful misstatement. In the case of M/s. Sisodia Associate Vs. Commissioner of Central Excise & Service Tax -2019-TIOL-1794 -HC - RAJ -CX. The Hon'ble Rajasthan High Court held as - " The second question urged is with respect to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her provision of this Act or the rules made thereunder, every person who is liable to pay duty under this Act or the rules made thereunder, and has collected any amount in excess of the duty assessed or determined and paid on any excisable goods under this Act or the rules made thereunder from the buyer of such goods in any manner as representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government." 19. The expressions "every person who is liable to pay duty under this Act or Rules made thereunder, and has collected any amount in excess of the duty" in Section 11D of the Act make it clear that the said provision would be applicable where the person is liable to pay duty and collected any amount in-excess of the duty assessed. Apart from that Section 73A of the Finance Act, 1994 has been introduced with effect from 18.04.2006 and that according to Sub Section (2) of Section 73A, Service Tax collected on non-taxable service is demandable/payable to Government exchequer. The Learned Departmental Representative had not disputed the legal position. We find that the present case is prior to insertion of Section 73A(2) of the Act 1994 and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
