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TMI Blog2023 (7) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... r construction/repair of Roads, Repairs and Maintenance of roads, civil structure etc. to R & B Department of Gujarat Government and Panchayat etc. in Gujarat and private parties. Appellant had obtained Service Tax Registration No: ABOFS6733MSD002 and paid Service Tax, when taxable services were provided. Appellant has discharged service tax liabilities from time to time, filed all statutory ST-3 Returns. The Income Tax authorities shared Appellant‟s data of 26AS shown in Income Tax Returns. Perusing said data shared by Income Tax authorities, Central Excise officers at Bhavnagar noticed that the Appellant had short paid Service Tax for the F.Y. 2015-16 to 2016-17. Superintendent of Central Excise, Bhavnagar requested Appellant vide letter No. AR-RJL/3rd party-DGARM/Reg/2020-21 dated 15-04-2021 to provide details of Income receipts and to submit documents related to Service Tax paid, which was not responded by the Appellant who claims not to have received the said letter dated 15-04-2021. The Show Cause Notice No.V/15-126/DEM/HQ/20-21 dated 19-04-2021 demanding total Service Tax of Rs.4,02,21,381/- was issued on the basis of the said 26AS data. However, Order-In-Original No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notice dated 19-04-2021. He submits that foundation of SCN is without legally sustainable base for demanding Service Tax. He submits that the following case laws laid down that SCN is foundation in the matter of levy and collection/recovery of duty, penalty and interest; Revenue cannot argue case not made in SCN and; that Department cannot travel beyond the show cause notice as settled in the following judgments:- 2006 (201)ELT-513(S.C.) - CC v. Toyo Engineering India Ltd. 2007 (215)ELT-489(S.C.) - CCE v. Ballarpur Industries Ltd. 2008 (232)ELT-7 (S.C.) - CCE v. Gas Authority of India Ltd. 2009 (241)ELT-481(S.C.) - CCE v. Champdany Industries Ltd. 2016(334)ELT-577(SC)-Precision Rubber Industries (P) Ltd v/s CCE 2018 (10) GSTL- 479 (Tri. - Mumbai) - Swapnil Asnodkar 2011 (22) STR- 571 (Tribunal)-United Telecoms Ltd. He also submits that aforesaid decisions clearly hold there is no authority in law to improvise any such defective SCN by O-I-O. He also submits that the calculation of Service Tax demand is erroneous as Show Cause Notice has presumed entire receipt as the consideration of "Taxable services", which is against principle of law laid down by the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m-tax-value", in terms of Section 67(2) of Finance Act 1994, even if service tax is held to be payable. 3.8 He also submits that this being a case of interpretation of provisions, extended period cannot be invoked. Appellant has paid the Service Tax wherever service was taxable for amount received from private parties. Since issue involved genuine interpretation of statutory provisions, charge of suppression of facts, wilful misstatement, fraud, etc., cannot be leveled, for initiation of SCN beyond normal period. Appellant pray to set aside demand confirmed against Appellant on the ground of limitation. It is settled law that there must be deliberate attempt by Appellant to suppress facts from Department with an intention to evade payment of Service Tax, which is not existing. Show Cause Notice dated 19-04-2021 for demand of Service Tax for the period from the FY 2015-16 to 2016-17 is issued beyond the normal period. Therefore, the entire demand confirmed against Appellant deserves to be set aside on this ground of limitation. Following decisions are relied upon by the Appellant :- Padmini Products v. CCE -1989(43)ELT-195(S.C.) CCE v. Chemphar Drugs & Liniments-1986(43)ELT-276 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,05,136 Rate of Service Tax 14.50 % 15 % Service Tax payable on differential value Rs. 2,02,70,611 1,99,50,770 Total Service Tax payable with cessRs. 4,02,21,381 The impugned Order-in-Original dated 14-09-2022 has confirmed the demand on the following calculations :- Details FY 2015-16 (in Rs.) FY 2016-17 (in Rs.) As per SCN 2,02,70,611 1,99,50,770 Service Tax paid as per ST-3 4,78,947 2,10,161 Service Tax payable 1,97,91,664 1,97,40,609 Total Service Tax payable with cess Rs. 3,95,32,273 5.3 We find that it is settled by now that without conducting any independent inquiry or investigation, the demand of Service Tax can not be sustained only on the basis of "26AS data" provided by the Income Tax authorities to the Central Excise Officers at Bhavnagar. Service Tax demand cannot be raised on the basis of assessment by the Income Tax Authorities. There is no dispute on the fact that Show Cause Notice for demand of the Service Tax is solely on Data/TDS/26AS of Appellant in Income Tax Returns for the FY 2015-16 to 2016-17, which are shared by Income Tax authorities. Declarations under Income Tax Act are Annual Consolidated Tax Statements. Income Tax and Service T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the following decisions :- J.P. ISCON PVT. LTD vsCCE vs 2022 (63) G.S.T.L. 64 (Tri. - Ahmd.) Shresth Leasing & Finance Ltd - 2023 (68) GSTL-143(Tri-Ahmd) FORWARD RESOURCES PVT. LTD - 2023 (69) G.S.T.L. 76 (Tri. - Ahmd.) VATSAL RESOURCES PVT LTD - 2023 (68) GSTL-279(Tri-Ahmd) REYNOLDS PETRO CHEM LTD - 2023 (68) GSTL-292(Tri-Ahmd) State of Gujarat v/s Novelty Electronics - 2018(16)GSTL-87(Guj.) In the above case ofJ.P. ISCON PVT. LTD -2022 (63) GSTL 64 (Tri - Ahmd), it has been held as under :- "18. We have considered the submissions made at length by both sides and perused the records. We find that the Revenue has proceeded in confirmation of the demand on the basis of documents and information provided by the Income Tax Department. The entire case of Revenue in the present matter is based on .xls sheets retrieved by the Income Tax Authorities and Statement of Smt. Kalindi Shah recorded by the Income tax Authorities. However, it is seen that apart from recording the statement of Shri VenkataramanaGanesa in the present matter no independent investigation has been carried out by the department. We observed that Department has not brought out any independent facts or e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y value in absence of any independent inquiry which was mandatorily required to have been conducted by concerned officers of Central Excise department at Bhavnagar, before issuance of the Show Cause Notice dated 19-04-2021. Further the data provided by the Income Tax Authorities does not appear processed in terms of the Section 36A or 36B of Central Excise Act 1944, made applicable in Service Tax matters by section 83 of Finance Act 1994. Further, the data provided by Income Tax authorities simply show the details of Income received from sale of services and Service Tax paid thereon. However, in Income Tax Returns, no further details of exemptions availed on services requires to be declared, hence, there may be mis-matched in data of Income tax vis-à-vis Service Tax Returns filed, depending facts of cases. 5.5 We note from records that Appellant had paid some Service Tax on self-assessment basis. Therefore, when 26AS data showed payment of Service Tax, it was obligatory on Commissioner issuing SCN dated 19-04-2021 to have it crossed checked, with Service Tax ST-3 Returns filed, if any, which would show exemption is claimed in ST-3 Returns filed by Appellant. Had Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case, officers have chosen not to exercise such unlimited powers to establish case of evasion of Service Tax against Appellant. It was necessary for Department to specify activity and nature of service that was to be taxed under specific clause of services or declared services described in the Finance Act 1994. The case laws cited by the appellant hold that Revenue cannot argue a case which was not made out in SCN and adjudicating authority cannot travel beyond the SCN, as the law settled by plethora of decisions by Tribunals, and higher forums. The decisions relied upon by Appellant support this view. 5.7 We also find that impugned O-I-O dated 14-09-2022 has not appreciated facts correctly that Appellant has provided services to the Government and local authorities and governmental authorities, which were exempted under Exemption Notification No. 25/2012-ST dated 20-12-2012 [Sr.No. 12(d),12(e), 12A(a), 13(a) and 29(h)]. The Adjudicating Authority has confirmed the demand of Service Tax for FY 2015-16 to 2016-17 as shown in above Para. The O-I-O dated 14-09-2022 has confirmed the demand on incorrect findings. Appellant has given detailed clarification for the said services an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nothing contained in this entry shall apply on or after the 1st April, 2020;"Inserted vide Notification 9/2016- Service Tax to be in effect from 1 March 2016. 13. Services provided by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of,- (a) a road, bridge, tunnel, or terminal for road transportation for use by general public; (b) a civil structure or any other original works pertaining to a scheme under Jawaharlal Nehru National Urban Renewal Mission or Rajiv AwaasYojana; "(ba) a civil structure or any other original works pertaining to the 'In-situ rehabilitation of existing slum dwellers using land as a resource through private participation‟under the Housing for All (Urban) Mission/Pradhan MantriAwasYojana, only for existing slum dwellers."Inserted vide Notification 9/2016- Service Tax. To be in effect from 1 March 2016. (bb) a civil structure or any other original works pertaining to the Beneficiaryled individual house construction / enhancement under the Housing for All (Urban) Mission/Pradhan Mantri Awas Yojana;";Inserted vide Notification 9/2016- Service Tax to be in effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s intended to be allowed. Eligibility criteria in this case is providing services to Government Authorities in public work on Roads, Bridges etc, which is not denied in this O-I-O. Appellant has given detailed clarification and documents for services and submitted that they are eligible for exemption by clause No. 12(d), 12(e), 12A(a), 13(a) and 29(h) of Notification No. 25/2012-ST which allows the exemption in services provided to the Government, a local authority or a governmental authority. O-I-O has erred in confirming Service Tax demand on the sale transactions for FY 2015-16 with M/s kunal Enterprise for "sale of Black Trap" and with M/s Vijay Construction for "sale of Asphalt". These transactions are under Negative list u/s Section 66D(e) of the Finance Act 1994. Similarly, O-I-O has erred in confirming Service Tax demand for FY 2015-16 again on the taxable value on which service Tax has already been paid in transactions with M/s. Reliance Defence and M/s Vijay Tank & Vessels Pvt Ltd. Similarly, O-I-O has erred in confirming Service Tax demand on the sale transactions in FY 2016-17 with M/s Kunal Enterprise for "sale of Black Trap" and with M/s Trupti Infrastructure Pvt Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 2016-17 intimating their claim of Exemption of Notification No. 25/2012-ST, department should have objected on availment of exemption within normal time limit, if revenue had any doubts on the availment of exemption. This being a case of interpretation of provisions, charge of suppression of facts, willful misstatement, fraud, etc., cannot be leveled, for initiation of SCN beyond the normal time limitation. It is settled law that there must be deliberate attempt by the Appellant to suppress the facts from Department with an intention to evade payment of Service Tax, which is not existing in this case. Show Cause Notice dated19-04-2021 for demand of Service Tax for F.Y. 2015-16 to 2016-17 is issued beyond normal period, considering following decisions relied by Appellant are applicable :- Padmini Products v. CCE -1989(43)ELT-195(S.C.) CCE v. Chemphar Drugs & Liniments - 1986(43)ELT-276(S.C.) Gopal Zarda Udyog v. CCE -2005(188)ELT-251(S.C.) Lubri-Chem Industries Ltd. v. CCE -1994(73)ELT-257(S.C.) Anand Nishikawa Co. Ltd. v. CCE -2005(188)ELT-149(S.C.) Therefore, the entire demand for FY 2015-16 to 2016-17 raised by the SCN dated 19-04-2021confirmed by impugned O-I-O agai ..... 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