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TMI Blog2022 (4) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and taxable service separately and in ST-3 returns they have shown taxable services on which they have paid service tax. But without examining the fact that the appellant has also provided the cleaning service, the demand of service tax sought to confirmed against the appellant on the basis of gross value of services provided by the appellant as shown in the balance sheet. The service tax which has already been paid by the appellant has been reduced and the balance amount of service tax demand has been proposed. Time Limitation - HELD THAT:- The demand of service tax is barred by limitation as the service rendered by the appellant were well known to the Department in earlier proceedings, therefore, the subsequent show cause notice cannot be issued by invoking extended period of limitation On merit also, the fact is noted that no service tax was payable on cleaning services in terms of Sl. No. 12 of Notification No. 25/2012 ST dated 20 June 2012 wherein the services provided to the Government, a local authority or a governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration to Sl. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x for the period April 2009 to March 2013 by invoking extended period of limitation. On 29.01.2016, the show cause notice was adjudicated and confirming the demand of service tax alongwith interest and penalties were also imposed on both the appellants. Thereafter, on 01.02.2016 in response to an enquiry for the recurring period, the appellant submitted the balance sheet for the period 2013-2014 and 2014-2015 and other relevant documents. On 06.05.2016, the appellant filed an appeal against the order dated 29.01.2016 before this Tribunal. On 11.09.2017 the audit through a letter asked the appellant to submit documents for conducting the audit for the financial year 2012- 2013 to 2016-2017. The appellant submitted the relevant documents to the audit team, thereafter on 28.12.2017, the officers of DGGSTI Zonal office, Lucknow searched the premises of the appellant and made an allegation that the appellant had short paid service tax. The DGGSTI issued another show cause notice to the appellant for the period 2013-2014 to 2016-2017 for recovery of service tax amounting to ₹ 2,84,72,839/- by invoking extended period of limitation on 15.10.2018. On 28.09.2018, this Tribunal vide fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manded in terms of Section 73A of the Finance Act, 1994. For this contention, he took the support of the order this Tribunal in the case of M/s Fusion India INC versus Commissioner of Central Excise, Service Tax, Lucknow in appeal No. ST/51697 of 2015 wherein vide Final order No. 72390 of 2018 dated 20.09.2018, this Tribunal held that the service tax was payable by the appellant even the penalties cannot be imposed by invoking the provisions under Section 73(1)of the Finance Act, 1994 and the said provisions cannot be invoked in this case, therefore, the impugned order is to be set aside. 4. On the other hand, learned Authorized Representative during the course of arguments reiterates that the Annexure I and II to the show cause notice clearly states that the appellant is engaged in the activity of manpower services. Therefore, he submits that the appellant is providing taxable service namely service of manpower, therefore, the demand is rightly confirmed against the appellant. 5. Heard the parties considered the submissions and examined the records. 6. On examining of one of the agreements, between the appellant and the Medical University, Greater Noida. The nature of the work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,58,78,452 12,23,96,139 Total 19,92,39,803 9,23,29,029 29,15,68,832 3.3 And whereas, the Party has filed the statutory half yearly ST-3 returns for the period from April-2013 to March-2017 and has shown their gross assessable/taxable value and Service Tax liability as paid by them, as shown below :- (Amount in Rs.) Period of Return Due date of Filing of Returns Actual date of Filing of Return Total Value of services as mentioned in ST-3 Returns Amount of Service Tax including all cess Apr 2013 - Sep 2013 25.10.2013 18.10.2013 37,13,535 4,58,994 Oct 2013 - Mar 2014 25.04.2014 25.04.2014 24,10.933 2,97,991 Total 61,24,468 7,56,985 Apr 2014 - Sep 2014 14.11.2014 01.11.2014 63,81,954 7,88,809 Oct 2014 - Mar 2015 25.04.2015 25.04.2015 89,38,596 11,04,809 Total 1,53,20,550 18,93,618 Apr 2015 - Sep 2015 25.10.2015 10.10.2015 1,30,46,722 17,20,804 Oct 2015 - Mar 2016 29.04.2016 25.04.2016 1,53,57,231 22,15,293 Total 2,84,03,953 39,36,097 Apr 2016 - Sep 2016 25.10.2016 25.10.2016 1,63,87,200 24,24,992 Oct 2016 - Mar 2017 30.04.2017 28.04.2017 2,17,76,104 32,66,414 Total 3,81,63,304 56,91,406 10. Further, we find that in pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 67 & 68 of the Finance Act, 1994 (here-in- refer referred to as "the Act') readwith Rule 6 of Service Tax Rule, 1994 (here-in-after referred to as "the Rules). The amount so evaded is recoverable from them under the proviso to Section 73 (1) of the Finance Act, 1994". 11. On examination of the show cause notice, we find that in balance sheet, the appellant has shown non-taxable service and taxable service separately and in ST-3 returns they have shown taxable services on which they have paid service tax. But without examining the fact that the appellant has also provided the cleaning service, the demand of service tax sought to confirmed against the appellant on the basis of gross value of services provided by the appellant as shown in the balance sheet. The service tax which has already been paid by the appellant has been reduced and the balance amount of service tax demand has been proposed. 12. We find in appellant's own case for the earlier period, a show cause notice was issued for the same activity and the matter travelled upto this Tribunal, this Tribunal vide final orderdated 20 November 2018, this Tribunal recorded the facts as under:- "2. Brief facts of the case ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o services. And whereas, on scrutiny of Balance Sheets of M/s Sun Facility Pvt. Ltd. for the period 2009-10 (RUD-2), 2010-11(RUD- 3), 2011-12 (RUD-4) and 2012-13 (RUD-5), the amount of gross receipt from business operation in different head was as under- CHART-I Income as per Balance Sheet under various head. Year 2009-10 2010-11 2011-12 2012-13 Income from Mess Management 835945 3207686 45781 Income from Para Medical Services 7675841 4981273 7081572 Income from Sanitation & Lawn Maintenance 3686991 481615 Income from Cleaning Service 449297 1464601 2236417 62731 Receipt from Paramedical Services 6548909 10475164 3200570 Biomedical Waste Services 1985724 Receipt from Manpower Supply 2192817 6475673 Grand Total 12648074 13476398 20097808 16866327 And after comparing the income shown in the Balance Sheets with the Service Tax paid as shown in their ST-3 Returns for the period April' 2011 to Sept' 2011 (RUD-6), Oct' 2011 to Mar'2012 (RUD-7) and April'12 to June'12(RUD-8), July'2012 to Sept'2012(RUD-9), Oct'2012 to Mar'2013(RUD-10), service tax not paid/short paid by the party has been calculated and is as follows:- CHART-II (Amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, on the basis of income statement demand was raised. We further note that appellant had contended before Original Authority that cleaning services were provided to Government Hospital and such cleaning services were if provided to organizations which are not commercial in nature were not taxable for the period involved was also not accepted by Original Authority. Further we find that some of the services were rendered to Reserve Bank Of India and taxable services provided to Reserve Bank Of India are exempted through Notification No.22/2006-ST dated 31.05.2006. The Original Authority confirmed the demand of service tax on the services provided to Reserve Bank Of India. Since there was no scrutiny of the receipt by the appellant for issue of said show cause notice we do not find the impugned show cause notice to be sustainable law. The same resulted in proceedings to be vitiated". 13. We find that for the earlier period, an audit was conducted against the appellant and on perusal of the balance sheet, the demand of service tax was confirmed on gross value of the services without ascertaining the fact that whether the part of services are exempted service or not? The appellant was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice dated October 28, 2009 for the period November 2005 to January 2008 was issued to the Appellant demanding service tax on the services which the Appellant claimed had been exempted from payment of service tax. The demand was confirmed by the adjudicating authority and the Appeal filed by the Appellant before the Commissioner (Appeals) was also dismissed. A second show cause notice dated September 29, 2011 was thereafter issued to the Appellant for the period 2006-07 to 2009-10. The demand made in the second show cause notice was also confirmed, though the Commissioner (Appeals) did reduce the demand 17. It needs to be noted that the extended period of limitation was sought to be invoked in the first and the second show cause notices. When the matter came up before the Tribunal, the issue regarding invocation of the limitation period was raised by the Appellant. The Tribunal accepted this contention and held that since the Revenue had full knowledge of the activities of the Appellant since August 13, 2007, the extended period of limitation alleging suppression of facts could not have been invoked. The demand was, therefore, set aside for this reason alone and the two Appeals fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et of facts is followed by another show cause notice for a later period on the same set of facts. The contention advanced was that the Department was fully aware of the facts even at the time of issuance of first show cause notice. The Supreme Court disposed of the Appeals on the point of limitations only and the observations are as follows : "8. Without going into the question regarding Classification and marketability and leaving the same open, we intend to dispose of the appeals on the point of limitation only. This Court in the case of P & B Pharmaceuticals (P) Ltd. v. Collector of Central Excise reported in (2003) 3 SCC 599 = 2003 (153) E.L.T. 14 (S.C.) has taken the view that in a case in which a show cause notice has been issued for the earlier period on certain set of facts, then, on the same set of facts another SCN based on the same/similar set of facts invoking the extended period of limitation on the plea of suppression of facts by the assessee cannot be issued as the facts were already in the knowledge of the department. It was observed in para 14 as follows : "14. We have indicated above the facts which make it clear that the question whether M/s. Pharmachem Distr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ".......... On the ratio laid down in this judgment it must be held that once the earlier Show Cause Notice, on similar issue has been dropped, it can no longer be said that there is any suppression. The extended period of limitation would thus not be available. We are unable to accept the submission that earlier Show Cause Notice was for a subsequent period and/or it cannot be taken into consideration as it is not known when that Show Cause Notice was dropped. If the Department wanted to take up such contentions it is for them to show that that Show Cause Notice was not relevant and was not applicable. The Department has not brought any of those facts on record. Therefore, the Department cannot now urge that findings of the Collector that that Show Cause Notice was on a similar issue and for an identical amount is not correct." 9. Allegation of suppression of facts against the appellant cannot be sustained. When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpted service that were provided by the Appellant was being repeatedly shown by the Appellant in the ST-3 returns filed in 2014 and 2015, and it is not a case where the Appellant had suppressed any information from the Department regarding the amount it had charged for the exempted services. It cannot, therefore, be urged that the Appellant had suppressed information or facts from the Department. 24. What is further important to note is that on July 05, 2016, the Department also issued a notice to the Appellant for conducting an audit for the period 2012-13 to 2015-16. The Appellant was required to furnish all the relevant documents, including documents relating to details of the exempted services. The audit report does not mention that the Appellant had provided any service which was not exempted under the various Notifications and the audit report was also approved by the Deputy Commissioner (Audit). 25. In regard to the audit report, the Additional Director General has even doubted whether the relevant documents were placed before the officers conducting the audit. In case the Additional Director General had any doubts, the audit report could have been called for and examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground on limitation only. Revenue authority cannot invoke the extended period of limitation, when the records of the assessee were audited by the officers once but did not find any short-payment from records. The 2nd audit party, doing the audit of same period or over lapping period, cannot allege that appellant has misstated or suppressed the facts from the departments. We find that the Hon'ble High Court of Bombay in the case of Rajkumar Forge Ltd. - 2010 (262) E.L.T. 155 (Bom.) held in paragraph No. 13. "13. It is an undisputed fact that insofar as the petitioners are concerned, audit of the petitioners' factory was carried out on three dates, i.e., 6th September, 1993, First November, 1995 and 2nd September, 1994. The petitioners vide their letter dated 6th September, 1993 have recorded the visit of the audit party and have also replied to the audit objections raised by the said audit party in respect of scrap generated and have informed the authorities that they were debiting ₹ 80,000/- at the rate of ₹ 1,000/-per Metric Ton and that they were also debiting differential duty totalling to ₹ 63,318/- in respects of Mill Rollers which was debited under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the Government, a local authority or a governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration to Sl. No. 25A, wherein services provided to Government, a local authority or a governmental authority by way of - carrying out any activity in relation to any function ordinarily entrusted to a municipality in relation to water supply, public health, sanitation conservancy, solid waste management or slum improvement and upgradation are exempt from payment of service tax . As the cleaning service has been exempt from payment of service tax in terms of the negative list to the Notification No. 25/2012- ST dated 20 June 2012, therefore, the appellant is not liable to pay service tax on cleaning services. If the same is excluded from the taxable service quantify by the Adjudicating Authority on the basis of gross value of services shown by the appellant in balance sheet, the appellant has paid service tax for supply of the para-medical services i.e. manpower recruitment and supply agency service. 16. In view of the judicial pronouncement in appellant's own case for the earlier period a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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