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TMI Blog2024 (2) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was issued on 20.10.2009 for the period 2006-07 and hence not sustainable in law. Classification of service - HELD THAT:- It is an admitted fact that for the entire amount collected from the members, service tax is paid by both the caterers on the gross amount including the amount deducted by Appellant. Though the transactions carried out by the appellant with M/s Sreenivasa Caterers and M/s Swadeshi Caterers are very similar in nature, first Appellate authority partly allowed the appeal with respect to the service rendered by M/s Sreenivasa Caterers. Further as per the law laid down by Hon ble Apex Court in the matter of STATE OF WEST BENGAL AND OTHERS VERSUS CALCUTTA CLUB LIMITED [ 2016 (6) TMI 476 - SUPREME COURT] and in appellant s own case M/S. KARNATAKA GOLF ASSOCIATION VERSUS THE COMMISSIONER OF SERVICE TAX BANGALORE [ 2023 (6) TMI 1326 - CESTAT BANGALORE] , benefit of small-scale exemption under Notification No. 6/2005 dated 01.03.2005 could have been extended by the Department in respect of the value of taxable services, if any and the appellant would be entitled to cum tax value benefit in terms of Section 67 of the Finance Act, 1994, also. The confirmation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the invoices issued by Caterers, wherein the deduction is specifically and separately shown, while making payment for the service provided by both the caterers. Thus, the impugned orders are prima facie, unsustainable. Learned Counsel further submits that the demand made by respondent is barred by limitation. The Learned Counsel drew our attention to the summons issued by office of the Additional Director General under Directorate General of Central Excise Intelligence (DGCEI), Bangalore on 21.06.2006 and the statement recorded from the Finance Manager of the appellant on 04.07.2006. and to a specific question No.18, it is replied that; it is seen from the Annual Report 2005-2006, the catering contract is given to one M/s Swadeshi. What are the facilities provided by you to all the caterers and what are the charges collected from the said caterers from 01.07.2003 onwards? . Answer No.18: We have provided facilities of Kitchen, kitchen equipment, electricity and water connections to caterers. We are recovering 20% of the foods sales in respect of parties held and 15% on the regular food sales. The food prices are monitored and controlled by us. Detailed statement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nternal audit has not culminated in a SCN. Thereafter in 2009, 3rd inquiry was conducted and on completion of inquiry, a SCN was issued on 20.10.2009. The said SCN culminated with the impugned Order-in-Original. Learned Counsel submits that considering the above fact, there is no reason to invoke extended period of limitation. Learned Counsel also drew our attention to the finding of the Tribunal in the matter of Commissioner of Service Tax, Chennai Vs. M/s Rani Meyyammal Hall reported in 2019 (24) G.S.T.L 218 (Tri. Chennai). 7.1. It is clear from Para 5.1 of the impugned order that vide a letter dated 14.07.2004, the Superintendent of Central Excise, Service Tax Cell had directed the respondent to discharge Service Tax liability for the donations received by them for the period 1999-2000 to 2002-2003. There appears to have been no further follow up thereafter in the matter by the Department. It is pertinent to note that subsequently both the units were visited twice by the internal audit of the Service Tax Commissionerate during which time also the point of dispute earlier communicated by the Superintendent in their letter dated 14.07.2004 was not followed up. Only in the thir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the appellants have submitted the details of foreign exchange expenses including the Integrated Service Agreement to the Revenue and the Revenue was fully aware of these transactions all the times and there after the appellant cannot be charged with suppression or willful misstatement and confirming the demand by invoking the extended period. While perusal of the material on record, we find that various audits of the records of the appellant were conducted by the Department from time to time wherein all the three issues involved in the present case were raised and the appellant submitted the explanation of each of the audit objection and there after nothing was done to issue the show cause notice. Further we find that the appellant has also produced the reply to the audit objection for the period April, 2004 to December, 2005 vide Exhibit 1, dated 5-4-2006 whereby the appellant has informed the Department that foreign remittances are not paid for any services rendered to NCR India and is purely an expenses sharing process as required by the US law and also mandated by transfer pricing rules which have become applicable in India under Indian Income Tax law and the copy of the Int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er period, no show cause notice was issued and it is only on 24-4-2012, show cause notice was issued invoking the extended period without bringing on record any material to show that extended period of limitation under Section 73(1) of the Finance Act can be invoked. We also find that the appellant has submitted return for the half year October, 2006 to March, 2007 on 18-4-2007 and the show cause notice was issued on 24-4-2012 which is beyond even the extended period of 5 years and hence not sustainable in law. We also find that in the case of Continental Foundation Jt. Venture v. CCE, Chandigarh-I 2007 (216) E.L.T. 177 (S.C.)], the Hon ble Apex Court has held in para 10 as under :- 10. The expression suppression has been used in the proviso to Section 11A of the Act accompanied by very strong words as fraud ‟ or collusion and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant had a bona fide belief that there was no tax liability and there was no mens rea or intent to evade tax and in view of the change in stand by the department as explained supra. Hence no penalties could have been imposed. Learned Counsel for the appellant relied on the Judgment of Hon ble high Court of Karnataka in the matter of CST Vs. M/s Motor World (reported in 2012 (27) STR 225 (Kar) and CCE Vs., M/s First Flight Courier Ltd (reported in 2011 (22) STR 622 (P H) and submitted that penalty cannot be imposed. Further he submits that penalty cannot be imposed simultaneously under Section 76 78, as they are mutually exclusive. The entire issue is falling under the category of Revenue neutrality and appellant is not liable to pay service tax as demanded by respondent. 7. Learned Authorised Representative (AR) for Revenue reiterated the finding of the Adjudicating authority and the Appellate authority. Learned AR further submits that the Final Orders relied by the appellant in M/s Rani Meyammal Hall and M/s MCR Corporation (supra) are not applicable in appellant s case, since there is no demand for further period in these cases. 8. Heard both sides perused the records. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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