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TMI Blog2024 (11) TMI 1136X X X X Extracts X X X X X X X X Extracts X X X X ..... construction service is undertaken along with supply of materials, the Appellant would be eligible for the benefit of 33% abatement in the taxable value. We observe that this exemption is available in the notification itself. Since the evidence submitted by the appellant clearly indicate rendering of the construction service along with consumables and materials such as Gas, grinding wheels, Welding Electrodes etc., we hold that the Appellant is eligible for abatement of 33% as provided under Notification No. 01/2006-S.T. dated 01.03.2006. Confirmation of the demand of service tax by invoking the extended period of limitation - We observe that the Appellant had been filing their Returns and paying Service Tax regularly. They have registered with Service Tax Department since 2006, but till the date of audit conducted in 2011, the Department had not raised any objection regarding any short payment of Service Tax by the Appellant. We observe that the if the demand has been confirmed on the basis of the data submitted by the appellant, i.e., from their balance sheet, Profit Loss Account and Form 26AS, then extended period of limitation is not invokable. Thus, we hold that the demand ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , an investigation was initiated against the Appellant. The Appellant thereafter submitted their balance sheet, Profit Loss Account, sample copy of bills raised by them, sample copy of work orders and TDS details (Form 16A/Form 26AS) to the audit team. On verification of the documents furnished by the Appellant, it was found that the Appellant had not paid Service Tax appropriately for the period from 2006-07 to 2011-12. 2.2. A Statement showing the taxable values declared by the Appellant in the ST-3 Returns filed by them and the income received as per the Form 26AS, Profit Loss Account has been prepared, which is reproduced below: - STATEMENT OF INCOME/RECEIPT YEAR As per Form 26AS (Rs) As per Profit Loss A/c. (Rs.) As per ST-3 (Rs.) 2006-07 87562614.00 87562614.00 - 2007-08 45472050.67 44559932.00 7735301.00 2008-09 59856432.47 67879970.00 27093882.00 2009-10 61555749.00 78973117.76 50917535.60 2010-11 81001496.42 55928035.00 58461992.00 2011-12 36945961.43 48603257.60 33072555.00 TOTAL 372394303.99 383506926.36 177281266.60 2.3. From the above, it appeared to the Revenue that during the period from 2006-07 to 2011-12, the total amount received as per Form 26AS was Rs.37,23,94,3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant submitted that they have already paid Service Tax on the taxable value of Rs.17,72,81,266/-, which is more than the taxable value on which they are liable to pay service tax after the abatement. Thus, the appellant contended that the demand of service tax confirmed in the impugned order is not sustainable. 6.4. The Appellant further submits that the entire demand has been raised on the basis of the data available in their balance sheet, Profit Loss Account and the data received from the Income Tax Department in Form 26AS. The appellant submits that they had taken registration with the Service Tax Department on 12.10.2006 and have been paying Service Tax and filing their S.T.-3 Returns regularly; they have not suppressed any information from the Department. Accordingly, it is the contention of the Appellant that the demand confirmed by invoking the extended period of limitation is not sustainable. For the normal period of limitation, if the service tax liability is calculated after allowing the abatement, they have paid more service tax than the service tax liability. Thus, the appellant submits that the demands confirmed in the impugned order for the normal period of limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period from 2006-07 to 2011-12 is beyond the period of limitation of five years and accordingly, they submitted that the demand for the period from 2006-07 to 2007-08, covering the period beyond five years, is not sustainable. 10.1. In this regard, we observe that even though the Appellant had registered with the Service Tax Department in the year 2006, they filed their first Service Tax Return for the period from October 2006 to March 2007 only on 12.10.2009. The relevant date for computing the five-year period as per proviso to Section 73 of the Finance Act, 1994 is the date of filing of the first Return. Since the return for the period 2006-06 and 2007-08 were filed only on 12.10.2009, we hold that the demand raised in the notice for the period from 2006-07 to 2011-12 is well within the extended period of limitation. Accordingly, we hold that the objection raised by the Appellant on this ground is not sustainable. 11. We find that the Appellant has also submitted that they have rendered the services of construction and fabrication to their clients along with supply of materials. Accordingly, the appellant submitted that they are eligible for the abatement of 33% from the tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale of materials to each client and therefore the abatement cannot be granted. Observation in the impugned order reads as under:- 19. It is not denied that they have purchased huge amount of raw materials. However, in order to get the benefit of Notification No. 12/2003-S.T., which must be strictly construed, value of only that material could be deducted from the gross value of service received, where there is a clear cut of sale to that customer to whom such services has been provided. Assessee has failed to link the sale of materials to each of such client and the gross value received from them. The notification does not provide benefit for gross deduction of all purchases and thereafter either used/sold/supplied in relation to all the services provided to service recipients. Further in Para 18, it is observed by the Adjudicating Authority that even assuming that the some might be in the nature of 'Works contract service' they have failed to bifurcate and substantiate that portion of gross value for treating it on different footing. In Para 16, it is observed that 'Just because they purchased cement and steel on behalf of their customers, it does not mean that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is their submission that they have not suppressed any information from the Department and thus the extended period of limitation is not invokable. 12.1. In this regard, we observe that the Appellant had been filing their Returns and paying Service Tax regularly. They have registered with Service Tax Department since 2006, but till the date of audit conducted in 2011, the Department had not raised any objection regarding any short payment of Service Tax by the Appellant. We observe that the if the demand has been confirmed on the basis of the data submitted by the appellant, i.e., from their balance sheet, Profit Loss Account and Form 26AS, then extended period of limitation is not invokable. We observe that this view has been held in various judicial pronouncements. 12.2. In the case of Arya Logistics v CCE ST Rajkot [Service Tax Appeal No. 12389 of 2014], it has been held as under: 4. We have carefully considered the submissions made from both the sides and perused the records. On going through the entire facts of the case we are of the view that the case can be disposed of on the ground of limitation itself. 4.1 We find that the issue involved in this case is regarding the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were disclosed to the department, nothing prevented department from issue of show cause notice within normal period of one year. Therefore, the demand raised in the show cause notice is clearly time-barred. 4.3 Since the demand is not sustainable on limitation alone, we refrain from giving finding on merit of the case and the same is left open. 12.3. In the case of Balajee Machinery v Commissioner of CGST Excise, Patna-II [2022 (66) G.S.T.L. 440 (Tri-Kolkata)], it has been held as under: 10 . In so far as the issue of limitation is concerned, we do not find any ingredient of fraud or suppression with an intent to evade payment of tax. In the case of Pappu Crane Services v. CCE, Lucknow (Final Order No. 71246 of 2019 in ST Appeal No. 70707 of 2018), the Co-ordinate Bench of Tribunal at Allahabad has held that where the demand is merely based on the data appearing in the Income Tax Portal, there cannot be said to any fraud or suppression so as to justify invocation of extended period of limitation. Therefore in the present case, in our view, the demand raised for the period up to March, 2015 is completely barred by limitation and accordingly the demand is set aside. Further, since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sionaire, for construction of the road or highway for administration and collection of toll etc. is part of road. 14. -------------------------------------------------------------------- 15 . Accordingly, in view of our findings, we allow the appeal and set aside the impugned order. We also hold that extended period of limitation is not available to Revenue. We also hold that appellant is also entitled to consequential benefits, in accordance with law. 12.5. Accordingly, by relying on the decisions cited above, we hold that the demand cannot be raised in this case by invoking the extended period of limitation. Thus, we hold that the demand confirmed in the impugned order by invoking the extended period of limitation is not sustainable. 12.6. In this case, we observe that the Show Cause Notice was issued on 04.07.2013, for the period 2006-07 to 2011-12. When extended period of limitation is not invokable, the appellant is liable to pay service tax on the normal period of limitation, which was 18 months during the relevant period. If we take into account the return filed by the appellant in April 2012, then the appellant is liable to pay service tax for the normal period of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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