9911796707
TMI Blog2022 (11) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... Return and depositing admitted tax w.e.f. 01/10/2016. Further, the appellant have maintained proper records of its transactions and turnover. They have also filed their IT-returns. Further, the appellant had admittedly taken suo moto registration under Service tax provision. In the circumstances, there is no suppression or failure on the part of the appellant to make compliance under the service tax provisions. Rather revenue have chosen to not make any enquiry for the period prior to 01/10/2016, soon after taking of registration in November 2016. Thus, allegation of revenue that appellant have concealed its particulars of turnover from service tax department, and revenue came to know upon receipt of information only in 2019 on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the period October 2016 to March 2017 and April 2017 to June 2017, and also paid the admitted tax. 2. Acting upon information received from Income Tax Department, that during the period 01/04/2014 to 30/09/2016, the appellant had a gross turnover of Rs. 98,86,917/-, accordingly, revenue called for information from the appellant, with regard to his service tax liability during the said period. As no information was submitted by the appellant, it appeared to revenue that it is not possible to as certain the nature of services provided by the appellant. Accordingly, show cause notice dated 16/10/2019 was issued invoking the extended period of limitation based on the information received from Income Tax Department like copy of ITR/26AS, de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices were taxable. It was also urged that there is failure on the part of revenue to exercise jurisdiction in collection of information from the appellant. Revenue had all the powers of discovery of information like summons, inspection, search etc.. It was also urged that the demand is hit by limitation, as extended period of limitation is not invokable. Show cause notice have been issued after more than 36 months. The basis of show cause notice is, the records and accounts maintained by the appellant-assessee in normal course of business. Admittedly, appellant had filed their IT returns, which is the basis of information. Further evidently, the appellant had taken registration w.e.f. 25/11/2016, and had started making compliance. At the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal was dismissed. Being aggrieved the appellant is before this Tribunal. 4. Learned Counsel for the appellant Mr. O.P. Agrawal, Chartered Accountant urges that the demand is not sustainable for failure to classify the service rendered in the SCN. Further Commissioner (Appeals) have also erred in classifying the service without giving any opportunity of hearing as required under law. The Commissioner (Appeals) was required to issue notice for classification of the service, as there was no such proposal in the show cause notice to classify the service under works contract head. It was further urged that it is the onus of the revenue to determine the classification under the particular head of service. Reliance is placed on the ruling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not attract service tax, as such activities are in relation to manufacture of excisable goods. Reliance is placed on ruling of Jharkhand High Court in Modi Construction Company 2011 (23) STR 6. It is further urged that revenue were aware activity of the appellant as the appellant had written letter dated 29/01/2016 to the department and given various information. Subsequent to that, the appellant had taken suo moto registration in November 2016 and had started making compliance from 01/10/2016. Thus, the issue of show cause notice after more than 3 years is hit by limitation. 7. It is further urged that the appellant is also eligible for SSI exemption under Notification No. 6/2005-ST. Accordingly, the learned Counsel urges for allowing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premises by providing JCB. The work order issued by Shree Cement Ltd dated 09/10/2015, provides- hiring of JCB for packing plant maintenance job, for operating/doing the work for nine hours each day or 240 hours per month on monthly charges of Rs. 48,000/-. Further the fuel was to be provided by the service recipient whereas lubricants and maintenance was to be provided by the appellant. Thus, the appellant was to provide competent operating staff to operate the JCB. Further, the JCB was to be operated as per the guidance and instructions of the engineer of the service recipient. Further, the appellant have received the hire charges for JCB, through bank and have also maintained proper records. I further find that Clause (f) of Section 66D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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