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TMI Blog2024 (4) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... any contemptuous conduct is made out. Therefore, the Department has not made out any case for invoking extended period and thus, the appellants succeed on the issue of limitation. It is noticed that for the similar services earlier provided by M/s Junior Varsity and M/s K12 Educational Management (same group companies), the department had bundled the services on the ground that these services are provided to same recipients and the classification under three different heads is erroneous as services are provided to single entity or service recipient. Thus, it appears, prima facie, that there is no consistency in classification of services by the Revenue. However, having found that the appellants have a strong case on limitation, there is no need to consider submissions on merits. The extended period of limitation is not invokable - the impugned order is set aside - appeal allowed. - HON'BLE MR. ANIL CHOUDHARY , MEMBER ( JUDICIAL ) And HON BLE MR. P. ANJANI KUMAR , MEMBER ( TECHNICAL ) Shri S. Jai Kumar , Advocate for the Appellant Shri V. R. Pavan Kumar , Authorized Representative for the Respondent ORDER [ Order per : ANIL CHOUDHARY ] The Appellant M/s Varsity Education Manag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dira Gandhi Industrial Co-Opeartive Society Ltd [2018 (11) TMI 1090 CESTAT Chennai], wherein the assessee had entered into an agreement with BHEL to provide qualified cooking supervisor and labourers necessary for catering service and cleaning service, this Tribunal took notice that it is not coming out from the records or the agreement that the assessee had supplied any food/eatables to the premises of BHEL and by merely supplying the necessary staff for running a canteen will not amount to providing outdoor catering service. Similar view was also taken by the Single Member Bench of this Tribunal at Mumbai in Kalsis Kitchenette [2010-TIOL- 1319-CESTAT-Mum] following the ruling in Rajiv Kumar Gupta case (supra). 4. So far the cleaning service is concerned, the same has been defined in section 65(24b) as cleaning activity means cleaning, including specialized cleaning services such as disinfecting, exterminating or sterilizing of objects or premises, of i) Commercial or industrial buildings and premises thereof; or ii) Factory, plant or machinery, tank or reservoir of such commercial or industrial buildings and premises thereof, Non-commercial buildings are not covered under the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper verification of the records and the books of accounts and hence, the same are not sustainable. 10. It is further urged that evidently the demand has been raised for the period 2011-12 2012-13 (till June 2012) vide SCN dt.13.11.2015 i.e., after 39 months, by invoking extended period of limitation. It is admitted fact that the appellant was registered with the department when making compliances and were in correspondence vide various letters dt.01.08.2012, 06.08.2012, 27.11.2012, 21.10.2013, 12.11.2013, 05.09.2014 and 30.10.2015 and had been replying to queries and furnishing documents as desired. Thus, the SCN is issued evidently by way of change of opinion and no case of suppression, misstatement or fraud, etc., is made out. Thus, the SCN is bad for invoking extended period of limitation. Accordingly, learned Counsel for appellant prays for allowing their appeal and setting aside of the impugned order. 11. Opposing the appeal, learned AR for Revenue states that the appellant had entered into an agreement dt.16.09.2011 with SKCMET for provision and maintenance of mess facilities. The authorized signatory in his statement has stated that the assessee is completely responsible fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Siva Prasad will have a binding effect. 13. He further urges in respect of MMRS (Cleaning service and transportation management provided to the educational institutions), the appellant has agreed to provide management of transportation facility provided to the students directly or through its agents and further has agreed to provide maintenance and housekeeping service being maintenance of campus, class rooms, laboratories, etc., and all other facilities of educational institutions. The contention of the appellant is erroneous that they are providing facility of maintenance and housekeeping which is nothing but cleaning service and is separately classifiable under the head cleaning service under section 65(24b). The said contention is erroneous as cleaning activity mainly covers cleaning including specialized cleaning whereas MMRS covers any service provided by a person regarding maintenance or repair of properties whether immovable or not as defined under section 65(64)(i)(b), which is the more appropriate service head. 14. Learned AR further urges that in respect of dispute to service tax under the head commercial coaching or training , the Larger Bench of this Tribunal in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dt.01.04.2012 placed by SKCMET, Nexgen and Sri Chaitanya. c) Copies of Balance Sheets for the years 2011-12 2012-13 of the assessee. d) ST-3 Returns filed by the assessee for the years 2012-13. e) Information provided by the assessee vide letters dt.21.10.2013, 12.11.2013, 19.10.2015 30.10.2015. f) Statements dt.09.07.2015 28.10.2015 of Sri Sreeram Athota, Finance Controller of M/s Varsity. 19. From the aforementioned list of documents relied upon by the Revenue, it is evident that the appellant has regularly filed the returns. Further, we find that there is no allegation of any misstatement or suppression in the returns. It is also not the allegation that the appellant has not disclosed their full turnover in the returns. The only allegation of Revenue in the SCN is that they came to know the fact of non-payment of service tax on the services under dispute only during the course of detailed investigation undertaken, and further have stated that under the self-assessment procedure it is imperative that the assessee should have scrupulously discharged the service tax liability. Thus, it is evident that the SCN has been issued by way of change of opinion and no case of suppression, m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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