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TMI Blog2024 (8) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... ive submits that a huge demand of Rs.3.5 crore cannot be assessed or finalized on the basis of sample invoices - the demand is huge, the Department should have undertaken appropriate investigation into the matter. The Show Cause Notice does not bring about any positive act on the part of the appellants with intent to evade payment of duty so as to allege suppression, mis-declaration etc. in order to invoke extended period - Tribunal has been consistently holding that extended period cannot be invoked when the case is made on the basis of 26AS statement, more so, when no ingredients for invocation of extended period are present in the case. Therefore, we are of the considered opinion that no case has been made for invocation of extended period. In the instant case, the appellant is a GTA service provider wherein the service recipient is liable to pay service tax on Reverse Charge Mechanism. The Department failed to adduce any evidence to the effect that the appellants have rendered taxable service to the category of persons who do not fall under the category liable to pay service tax on RCM basis and this appropriate tax requires to be paid by the appellants themselves. In the absen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He submits that even if the consignment note is not issued, there is no liability on the appellants as they are covered by Entry No.22 under Notification No.25/2012; even in the cases where the appellant has provided Service to other GTA service providers, the activities exempt under Section 66D.He further submits that the appellants were engaged mainly in transportation of goods to Nepal and Bhutan, which are outside taxable territory and in view of Rule 6A (Export of Services) Rules, 1994, tax cannot be demanded from the appellants. He further submits that in case the duty is confirmed on the appellants, they are eligible for cum-duty benefit.He relies on the following cases: M/s Power Machines India Ltd. 2023 (9) TMI 648- CESTAT NEW DELHI. Narendra Road Lines Pvt. Ltd. 2022 (64) GSTL 354 (Tri. Allahabad). Jaikumar Fulchand Ajmera 2017 (48) STR 52 (Tri. Mumbai) Chartered Logistics Limited 2023 (7) TMI 883- CESTAT AHMEDABAD. Vaishav Marbles Pvt. Ltd. 2024 (5) TMI 274-CESTAT NEW DELHI. 3. Learned Consultant for the appellants submits that service tax demand cannot be based on Income Tax Returns and 26AS, without examining any records of the appellant, without identifying the servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Excise, Indore - 2015 (37) S.T.R. 131 (Tri. Del.) M. P. Laghu Udhyog Nigam Ltd. vs. Commissioner of C Ex, Bhopal - 2015 (37) S.T.R. 308 (Tri. Del.) Mahanagar telephone Nigam Ltd. vs. Union of India - 2023 (73) G.S.T.L. 310 (Del.) Sant Roadlines vs. Commissioner of C. Ex. S.T., Panchkula 2020 (43) G.S.T.L. 206 (Tri. - Chan.) 5. Learned Consultant submits further that the Department has wrongly calculated the demand on the higher side; he submits that a uniform rate of tax has been taken instead of the rate as prevalent during each of the periods from 2015 to 2017; whereas the actual tax payable, if any, comes to Rs.2,80,04,204/-, Department calculated Rs.3,81,63,938/-. He further submits that it has been wrongly alleged by the Department that they have collected the service tax and have not paid the same; perusal of the invoices would clearly indicate that they have simply mentioned the tax payable by the service recipients in the invoices; they have neither paid the service tax nor recovered from the service recipients; they have recovered the amounts which are shown as net recoverable in the invoices; he further submits that no corroborative evidence has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt time; in spite of various opportunities given, they have neither explained as to why duty was not payable by them nor have submitted requisite data/ record; therefore, Department had to proceed under Section 72 for assessment on best judgment method; it is incorrect to say that the service has not been specified in the Show Cause Notice; with the advent of Negative List of Services, there was no need to specify the service in the new tax regime; as the appellants had not provided any information, benefit of export could also be not given. Learned Authorized Representative cites the example of one export invoice/ consignment number No.7619 dated 30.01.2016 corresponding to invoice No.5306 dated 16.02.2016 and submits that though the material has been transferred to Kathmandu, the recipient of the service was LG Electronics India Pvt. Ltd., Noida, as per Rule 10 of Place of Provision of Rules, 2012, the location of service receiver being in India, the benefit of export cannot be given. As far as limitation is concerned, he relies on the following cases: Lovely Autos Final Order No.60233/2023 dated 01.08.2023 in Service Tax Appeal No.709 of 2011. DELHI TRANSPORT CORPORATIONVersusCO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sorted to a short-cut, which is not permissible as per law. 10. Further, we find that the Show Cause Notice does not bring about any positive act on the part of the appellants with intent to evade payment of duty so as to allege suppression, mis-declaration etc. in order to invoke extended period. We find that the Tribunal has been consistently holding that extended period cannot be invoked when the case is made on the basis of 26AS statement, more so, when no ingredients for invocation of extended period are present in the case. Therefore, we are of the considered opinion that no case has been made for invocation of extended period. Moreover, we find that in the instant case, the appellant is a GTA service provider wherein the service recipient is liable to pay service tax on Reverse Charge Mechanism. The Department failed to adduce any evidence to the effect that the appellants have rendered taxable service to the category of persons who do not fall under the category liable to pay service tax on RCM basis and this appropriate tax requires to be paid by the appellants themselves. In the absence of the same, the benefit of doubt has to be given to the appellants. It is not proper ..... X X X X Extracts X X X X X X X X Extracts X X X X
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