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TMI Blog2023 (6) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the data collected by the Department during IOCL CERA audit for all contractors and basis the payments made by IOCL to various contractors, the demand has been raised in the impugned proceedings also. Hon ble Supreme Court in the case of ECE INDUSTRIES LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, NEW DELHI [ 2003 (3) TMI 136 - SUPREME COURT] , had held that the extended period of limitation cannot be invoked where the Department has earlier issued Show Cause Notice in respect of the same subject-matter. It could not be said that there was a willful suppression or mis-statement. Then, the extended period of limitation cannot be invoked. As regards the judgment referred to by the department in their written submissions in the case of MM CYLINDERS (P) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, TIRUPATHI [ 2011 (9) TMI 779 - CESTAT, BANGALORE] , the same is not applicable to the facts of the present case as in that case the further investigations had revealed new details, whereas in the present case both the notices are based on third party IOCL records and then comparing the same with 26AS data of the Appellant. The Appellant had been providing same services as was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant. The impugned order cannot be sustained and is accordingly set aside - The Appeal filed by the Appellant succeeds both on merits as well as on limitation. - Service Tax Appeal No.79714 of 2018 - FINAL ORDER NO. 75600/2023 - Dated:- 8-6-2023 - SHRI P.K. CHOUDHARY, MEMBER (JUDICIAL) AND SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL) Shri Ankit Kanodia, Advocate for the Appellant (s) Shri J. Chattopadhyay, Authorized Representative for the Revenue ORDER The present appeal has been filed by the Appellant M/s. M K Enterprises against the Order passed by the Ld. Commissioner, CGST CX, Patna covering the period from October 2011 to March 2016. 2. The Appellant is engaged in providing services to Indian Oil Corporation Ltd (hereinafter referred to as IOCL ) and such services are taxable services under Chapter V of the Finance Act, 1994 under the category Works Contract Service , Maintenance Repair Service , Manpower Recruitment/Supply Service and Cleaning Service . It is the case of the Service Tax department that the Appellant have not filed their ST-3 returns on time and have not paid Service Tax on the entire consideration received from IOCL for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tire demand was dropped by the Ld. Commissioner (Appeals), Patna and the Department s appeal before the Tribunal was dismissed under National Litigation Policy. Further, as regards merit of the case, the Ld. Advocate argued that though it is admitted that the Appellant had delayed in filing of returns and payment of taxes, however the taxes have since been paid with interest before passing of the adjudication order and all the calculations in this respect were submitted before the authority. He further states that the Ld. Adjudicating authority has ignored all the calculations for payment of Service Tax and has just applied the rate of Service Tax on income as per 26AS to confirm the demand of tax along with interest and penalty. Even no appropriation towards taxes paid has been done by the Ld. Adjudicating authority and thus the entire demand is bad and the order has to be quashed. The Ld. Advocate has also submitted a Chartered Accountant s certificate for payment of Service Tax as per 26AS along with reconciliation statement. 6. The Ld. Authorized Representative, appearing on behalf of the Department, while supporting the Order-in-Original has stated that the Appellant had su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er National Litigation Policy. Further in the said case, the Ld. Commissioner (Appeals) had decided the matter in favour of the Appellant by considering all the submissions as to abatement and reverse charge (RCM) on services provided by the Appellant as well as the payments made during the said period. 11. We find that the present Show Cause Notice is also based on the data collected by the Department during IOCL CERA audit for all contractors and basis the payments made by IOCL to various contractors, the demand has been raised in the impugned proceedings also. 12. At this juncture we would like to refer to the judgment of Nizam Sugar Factory Vs. Collector of Central Excise [2006 (197) ELT 465], wherein the Hon ble Supreme Court held that when the first Show Cause Notice was issued, all the relevant facts were in the knowledge of the authorities. Later on, while issuing the Show Cause Notice for a subsequent period on the same issue, then the identical/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. 13. We also find that the Hon ble Supreme Court in the case of ECE Indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red view, the impugned Order-in-Original arising against the said Show Cause Notice which is issued by the Department for a subsequent period by invoking the extended period of limitation is unsustainable and is liable to be quashed on this ground itself and we order accordingly. However, the Appellant is liable to pay the late fee for filing of ST-3, if not already paid. 18. Even though we are of the view that the extended period of limitation cannot be invoked in the present case, on merits we find that the department has grossly erred in not taking into account the payments made by the Appellant as well as submissions for provision of services having abatement as well as falling under reverse charge mechanism. We find that the ST-3 returns disclosing the payment of tax had been filed by the Appellant belatedly, but before passing of the adjudication order, the same was communicated to the Department by the Appellant. However, the Ld. Adjudicating authority has not taken it on record as the same was filed belatedly. In this regard we are of the view that though the Appellant had filed the ST-3 belatedly, but the same had clearly accounted for all the value of taxable services ..... X X X X Extracts X X X X X X X X Extracts X X X X
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