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TMI Blog2025 (1) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Both these observations and that there is no other evidence except appellant s own document to prove the alleged act of suppression on part of appellant, we hold that the aforesaid provisions have wrongly been invoked while issuing the show cause notice. Therefore, the show cause notice is held to be barred by them. Conscious and deliberate withholding of the information manufacturer is necessary for invoking the extended period. If the department had full knowledge or the manufacturer had reasonable belief that he is not required to give a particular information, only normal period of limitation i.e. one year is applicable. Resultantly, the demand of these issues is held purely barred by period of limitation. The demand on three of the issues are liable to be set aside. Service Tax of Rs. 2,10,11,500/- on Liquidated Damages/Penalty for the period April 2014 to June 2017 - HELD THAT:- Declared service, otherwise, has first to be a service which in terms of Section 65(B)(44) of Finance Act, 1944 is any activity carried by a person for another for consideration. The term consideration is defined in explanation (a) to Section 67 of the Act to mean any amount that is payable for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,451/-:- (ii) The service tax was paid @ 12.36% on Works Contract Service under Reverse Charge Mechanism despite that it was revised to 14% with effect from 1.6.2015. Hence an amount of Rs. 42,188/- was short paid by the appellant; (iii) Swachha Bharat Cess (SBC) was not been paid/short paid @ 0.5% of the taxable value under Works Contract Service under Reverse Charge Mechanism resulting in short payment of SBC amounting to Rs. 22,344/-; (iv) The appellant had collected amount of penalties from the contractors/suppliers. The amount is alleged to have been collected for tolerating the act of the contractors which is a declared service in terms of Section 66E(e) of the Finance Act, 1994. Accordingly, the service tax amounting to Rs. 2,10,11,500/- is proposed to be recovered on the amount of penalties collected by the appellant from 2014-2015 to June 2017-2018. 2. Based on these observations and respective allegations four of the above mentioned amounts were proposed to be recovered along with the interest and the penalties vide Show Cause Notice No. 03/2019-20 dated 9.10.2019. The proposal has been confirmed vide the impugned order. Being aggrieved, the appellant is before this Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, irrespective the two are sister concerns, but the practice is not legally permissible as there is no provision for the adjustment of the amount paid for a different assessee. The CBEC Circular No. 58/7/2003-ST dated 20 May 2003 has rightly been differentiated by the adjudicating authority below. As per the said circular the payment made in the wrong accounting code can be adjusted. However, in the present case the payment is made in the name of the different assessee. Hence there is no infirmity in the findings while confirming the demand of service tax of Rs. 5,68,451/-. The short payment of Rs. 42,188/- and of SBC amounting to Rs. 22,344/- is purely on the basis of payment not being made as per the prescribed rate of duty. Hence there is no infirmity in those findings. With respect to the demand of service tax of Rs. 2,10,11,500/-, the findings in the order under challenge have purely been relied upon. Learned Departmental Representative further submitted since the appellant has short paid the payment resulting into tax evasion this observation is sufficient proof of alleged suppression. Hence the extended period has rightly been invoked. With these submissions, the appeal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f limitation. The demand on three of the issues (i), (ii) and (iii) as mentioned above is liable to be set aside. 8. Coming to the demand of service tax amounting to Rs. 2,10,11,500/- alleging it to be an amount received for rendering declared services defined under Section 66E, we foremost peruse the provision, it reads as follows: Declared services. 66E. The following shall constitute declared services, namely: (a) renting of Immovable property: (b) construction of a complex, building, civil structure. (c) temporary transfer or permitting the use or enjoyment. (d) development, design, programming, customization (e) agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act: (f) transfer of goods by way of hiring, leasing (g) activities in relation to delivery of goods on hire purchase or any (h) service portion in the execution. (i) service portion in an execution (j) assignment by the government of the right. 9. It is clear from the perusal of clause (e) of the said section that the said clause intent to levy of service tax only when there is an agreement entered into between the parties in terms of which the promisee agrees to refra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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