9911796707
TMI Blog2024 (3) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax, Bangalore and on the same being challenged by the appellant, the Commissioner (Appeals) held the demand under the Business Support Services as unsustainable, observing that it is not the case of the Department that the assistance provided by them is used for the purpose of business or commerce referring to the Circular No.109/03/09 dated 23.03.2009 issued by the Board. In view of these facts, the issue of limitation is squarely covered by the decision of the Supreme Court in Nizam Sugar Factory [ 2006 (4) TMI 127 - SUPREME COURT ] where the Court held that the allegation of suppression of facts against the appellant cannot be sustained, when the first show cause notice was issued all the relevant facts were in the knowledge of the authorities. The assessee was under statutory obligation of self-assessment to disclose the requisite details and pay the correct service tax amount and non-disclosure thereof amounts to suppression of material facts from the Department and therefore, the extended period of limitation of 5 years from the relevant date can be invoked under Section 73(1) of the Act - The allegation of suppression of facts have been buttressed on the ground that by vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has to be classified therein and not under the business support service as claimed by the Revenue. Since the issue decided on merits in favour of the appellant and also on the issue of extended period of limitation there is no need to go into the question of interest or penalty. The appeal filed by the Revenue on the plea that the demand for the period 2010-2011 is within the period of five years also does not survive in view of the issue decided on extended period of limitation and on merits. The impugned order needs to be set aside - the appeal filed by the assessee is accordingly allowed. - MS. BINU TAMTA, MEMBER (JUDICIAL) AND MS. HEMAMBIKA R. PRIYA, MEMBER (TECHNICAL) Ms. Madhumita Singh, Advocate for the assessee. Shri Rajeev Kapoor, Authorised Representative for the Department. ORDER Cross appeals have been filed by the appellant and also by the Revenue challenging the Order-in-Original No. DLI-SVTAX-002-COM-028-16- 17 dated 28.11.2026 passed by the Commissioner of Service Tax, Delhi-II. The appellant is aggrieved against the confirmation of demand of service tax by invoking the extended period of limitation for the period 2011 12 to 2015 16 and the revenue has filed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time specified. The actions of the service providers amounts to suppression of material facts from the Department resulting in contravention of the various provisions of the Act with intent to evade payment of service tax. The show cause notice was adjudicated and on the issue of invocation of extended period of limitation, the Adjudicating Authority dropped the demand raised for the period 2010-2011 as the same being beyond the period of 5 years and confirmed the service tax liability for the period 2011-2012 to 2015-2016. Being aggrieved against the demand being dropped for the year 2010-2011, the Department has filed a separate appeal and the appellant has challenged the imposition of service tax by invoking the extended period of limitation as well as on merits. 7. Ms. Madhumita Singh, learned Counsel for the appellant raised preliminary objection that the entire demand under the show cause notice is barred by limitation as the show cause notices have been issued earlier in respect of the same issue and the Department was aware of similar facts under the proceedings. The appellant had filed online ST-3 Returns from time to time disclosing the value of the services and the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Business Support Services and for an amount of Rs.10,03,199/- for the said period against the service provided to SEZ. 3.3 Whereas for subsequent period the details of show cause notices issued to the assessee from Chennai location are as under:- S.No. SCN No. Date Period Involved Service Tax Involved (in Rs.) 1. 426/2010 03.08.2010 2006-2007 to 2008-2009 40,14,354/- 2. 529/2011 20.10.2011 2010-2011 7,45,196/- 3. 21/2013 26.02.2013 2011-12 7,69,554/- 4. 72/2014 12.05.2014 04/2012 to 06/2012 2,52,749/- 5. 211/2014 26.08.2014 07/2012 to 03/2013 6,43,526/- 6. SOD No.12/2015-ST-I 12.02.2015 2013-2014 11,16,425/- 3.4 Whereas on perusal of Statement of Demand No.12/2015- ST-1 issued from Chennai it is evident that the issue left in question is non-payment of service tax on management fee under Business Support Services . 10. From the fact that several show cause notices have been issued by the Department, it cannot be said that the Department is not aware of the allegations now being made in the instant show cause notice. The facts were in the knowledge of the Department. In fact, the learned Counsel for the appellant has referred to Order-in-Appeal No.278/2013 dated 19.07.2013, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department itself is unclear regarding the classification and taxability of the services, the allegation of suppression with intent to evade payment of service tax against the appellant is unsustainable. Learned Counsel has also relied on the decision of the Supreme Court in the case of Commissioner Vs. United Shippers Ltd. 2015 (39) STR 369 (SC), holding that the allegation of suppression cannot be sustained and the extended period of limitation cannot be invoked where the Department is not clear and has been challenging their stand as to classification of the services rendered by the assessee. 12. We may now consider the reasons enumerated in the show cause notice for invoking the extended period of limitation. The issuance of show cause notices by Chennai Commissionerate was never revealed by the appellant to other jurisdictional officers. The factor of management fee was never reflected by the appellant in their ST-3 Returns filed with the Department during the relevant period. These facts have come to the notice only on the receipt of the letter dated 4.8.2015 from Chennai Commissionerate and but for which this would not have come to light to the Service Tax Division, Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also been considered in the case of G.D. Goenka (supra), the relevant portion is quoted below:- 20 . Thus, the central excise officer has an obligation to make his best judgment if either the assessee fails to furnish the return or, having filed the return, fails to assess tax in accordance with the Act and Rules. To determine if the assessee had failed to correctly assess the service tax, the central excise officer has to scrutinize the returns. Thus, although all assessees self-assess tax, the responsibility of taking action if they do not assess and pay the tax correctly squarely rests on the central excise officer, i.e., the officer with whom the Returns are filed. For this purpose, the officer may require the assessee to produce accounts, documents and other evidence he may deem necessary. Thus, in the scheme of the Finance Act, 1994, the officer has been given wide powers to call for information and has been entrusted the responsibility of making the correct assessment as per his best judgment. If the officer fails to scrutinise the returns and make the best judgment assessment and some tax escapes assessment which is discovered after the normal period of limitation is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for records and if necessary, make the best judgment assessment, if, as per the instructions of CBIC, the officer does not conduct a detailed scrutiny of same Returns and as a result is unable to discover any short payment of tax within the period of limitation, neither the assessee nor the officer is responsible for such loss of revenue. Such a loss of Revenue is the risk taken by the Board as a matter of policy. d) Extended period of limitation cannot be invoked unless there is evidence of fraud or collusion or wilful misstatement or suppression of facts or violation of the provisions of Act or Rules with an intent. e) Intentional and wilful suppression of facts cannot be presumed because (a) the appellant was operating under self-assessment or (b) because the appellant did not agree with the audit and claimed that CENVAT credit was admissible; or (c) because the appellant did not seek any clarification from the Revenue; or (d) because the officer did not conduct a detailed scrutiny of the Returns and the availment of CENVAT credit which is alleged to be inadmissible and was discovered only during audit. 15. As the issue on limitation has already been answered by the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature of planning the travel itinerary of the clients, suggesting better flights and flight time, options, preparing department-wise travel related reports. We find that said services have been considered by this Tribunal in the case of M/s Modiline Travel Services Pvt. Ltd Vs. Commissioner of Service Tax, Delhi Final Order No. 51666/2023 dated 20.12.2023 referred to by the appellant wherein the appellant (therein) claimed that it renders travel agent services to its clients, which services include booking of air tickets, travel planning and itinerary management for domestic and international travel and show cause notice was issued proposing demand of service tax under the category of Business Auxiliary Services (BAS). The Tribunal observed that the services rendered by the appellant have already been taxed under Air Travel Agency service and so any consideration arising from the same transaction cannot be taxed under different category and therefore the demand was set aside. 18. We are of the view that the appellant merely facilitates and assist the individuals who are travelling on which no service tax is leviable for the simple reason that service tax is charged on the ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
