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TMI Blog2022 (3) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of 5 years - revenue neutrality - HELD THAT:- The Department has done audit of the appellant for February, 2014-15 as per Detailed Manual Scrutiny Report dated 15.12.2017, which includes checking of Form 26AS as clearly mentioned in Para 5.2 of CBEC Circular No 185/4/2015-ST dated 30.6.2015 vide F.No 137/314/2012 and therefore no suppression can be alleged for this period - proviso to Section 73(1) has not been invoked in the operative part of the SCN and therefore extended period cannot be invoked as held in M/S SATISH KUMAR CO. VERSUS COMMISSIONER OF CENTRAL EXCISE, NAGPUR [ 2018 (5) TMI 611 - CESTAT MUMBAI] - thus invoking extended period cannot be sustained for part of tax demand raised on RCM basis by virtue of it being a revenue neutral situation since the appellant is eligible for credit if it had done tax payment. The entire demand fails on merits as well as on limitation - there can be no imposition of Service tax, interest and penalty on the appellant - Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 75792 of 2021 - Final Order No. 75120/2022 - Dated:- 23-2-2022 - SHRI P.K.CHOUDHARY, MEMBER (JUDICIAL) Shri Aakarsh Srivastava, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ava, Learned Counsel for the appellant argues that no extra Service Tax is payable because the CA certified Reconciliation of Form 26AS and ST-3 Returns clearly shows that some service recipients deducted TDS on the entire rent/commission plus the Service Tax component causing inflation in Form 26AS as compared to ST3 Returns, and these service recipients, namely M/s JRD Jewels Pvt Ltd, M/s Sohum Shoppe Pvt Ltd, Shree Krishna and ATC Associates, Chandrabali Commercial(I) Pvt Ltd also confirmed this fact by giving certificates of their own. 4. Learned Counsel for the appellant also states that regarding the service tax demand on the appellant on RCM basis, as seen from Reconciliation as well as from the Invoices, Service Tax was already collected by Service Provider and paid to the Department and therefore cannot be demanded again. Also, some of these Service Providers for which tax is being demanded by the Department on RCM basis are Private Limited Companies or Limited Companies, viz. Blue Star Ltd, Kone Elevator India Pvt Ltd and Tractors India Pvt Ltd and thus Service Tax is not on RCM for them as per Point I(A)(v) of Notification No 30/2012-Service Tax [Reverse Charge Notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lysing the definition of Supply of Tangible Goods Service and demand is also time bar, we do not need to consider the said judgment, accordingly the impugned order is set aside. The appeal is allowed. For the first half of F.Y 2014-15, the SCN is even beyond 5 years. Further, for the whole of F.Y 2014-15, the appellant was audited by the Department as seen from Detailed Manual Scrutiny Report dated 15.12.2017. The finding of the Adjudicating Authority that Manual Scrutiny did not include Form 26AS is not correct because Para 5.2 of CBEC Circular No 185/4/2015-ST dated 30.6.2015 vide F.No 137/314/2012- Procedure of Detailed Manual Scrutiny clearly states that Form 26AS is also checked. It is trite law that extended period of limitation cannot be invoked when the Department has already carried out Detailed Manual Scrutiny. The appellant regularly filed all returns, so the Department cannot take a stand that it examined the factual position only on receiving details of Form 26AS for invoking extended period, as seen from CBEC Circular No. 113/7/2009-S.T., dated 23-4-2009 vide F.No. 137/158/2008-CX. 4 and CBEC Circular No 185/4/2015-ST dated 30.6.2015 vide F.No 137/314/2012 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Learned D.R justifies and reiterates the findings of the impugned order of the Ld Commissioner (Appeals) and accordingly prays that the appeal be dismissed. 9. Heard both sides through video conferencing and perused the appeal records. 10. I find force in the contention of the Ld Counsel of the appellant that CA Certified Reconciliation of ST-3 Returns and Form 26AS clearly shows that inflated figure in Form 26AS is because some Service Recipients deducted TDS not only on the rent/commission but also on the Service Tax component. The Service Recipients also confirmed the same. I also find force in the contention of the appellant that part of the service tax being demanded by the Department on RCM basis cannot be sustained since Service tax was already collected by Service Providers as seen from invoices and Reconciliation Certificate. Moreover, some service providers for which the Department is demanding Service Tax on RCM basis are Limited companies or Pvt Ltd Companies like Blue Star Ltd, Kone Elevator India Pvt Ltd and Tractors India Pvt Ltd and therefore tax is not on Reverse Charge, but on forward charge basis as per Point I(A)(v) of Notification No 30/2012-Service Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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