9911796707
TMI Blog2025 (1) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... r this category, then the demand should have been raised within the normal period of limitation - the demand of Service Tax confirmed in the impugned order by invoking the extended period of limitation under the category of clearing and forwarding agency service is not sustainable. The Appellant is liable to pay Service Tax for the normal period of limitation confirmed in the impugned order. As there is no suppression of fact with intention to evade the tax established in this case, no penalty is imposable for the demand confirmed under this category for the normal period of limitation. Demand of Service Tax under the category of GTA service - Appellant's failure to register and file returns under this category during the relevant period - HELD THAT:- The Appellant had not taken registration under the category of GTA service and not filed Returns in respect of this category. It is on record that the Appellant had been collecting Service Tax under the category of GTA service and had been paying Service Tax under the category of GTA service, but had not filed returns to that effect under the said category. The Appellant has suppressed information regarding collection of Service T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/JC/ST-II/Kol/2017-18 dated 19.05.2017 has allowed the benefit of abatement claimed by the Appellant and confirmed the demand of Service Tax amounting to Rs.13,13,418/- (Rs.8,81,654/- under clearing and forwarding agency service and Rs.4,31,764/- under GTA service ). The ld. adjudicating authority also demanded interest and imposed equal amount of tax as penalty under Section 78 of the Finance Act, 1994. He imposed a penalty of Rs.10,000/- under Section 77 of the Act. 1.2. On appeal, the Ld. Commissioner (Appeals) upheld the demands confirmed in the Order-in-Original dated 19.05.2017 vide the impugned Order-in-Appeal No. 576/S.Tax-II/Kol/18 dated 12.10.2018. 2. Aggrieved against the confirmation of the demands, the Appellant has filed this appeal. 3. The Appellant submits that the Show Cause Notice has been issued on 19.10.2015 covering the period from 2010-11 to 2013-14 on the basis of the data reflected in their balance sheet, Profit Loss Account and S.T.-3 Returns; they have taken registration for clearing and forwarding agency services and filed returns regularly with the Department. The Appellant therefore submits that they have not suppressed any information regarding cleari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of the difference between the figures found in the balance sheet and S.T.-3 Returns. As the Appellant had been filing their Returns regularly under the category of clearing and forwarding agency service, I find that they have not suppressed any information from the Department. If there is any short payment of Service Tax under this category, then the demand should have been raised within the normal period of limitation. 6.1. In support of the contention that the demand cannot be raised on the basis of difference between the S.T.-3 Return and balance sheet figures by invoking the extended period of limitation, the Appellant has referred to the decision of this Bench rendered in the case of M/s. Munna Construction v. Commissioner of Central Excise and Service Tax, Jamshedpur [Final Order No. 77625 of 2024 dated 22.11.2024 in Service Tax Appeal No. 76359 of 2014 CESTAT, Kolkata]. The relevant extract of the said decision is reproduced below: - 12. Regarding confirmation of the demand of service tax by invoking the extended period of limitation, we observe that the Show Cause Notice has been issued on the basis of the data submitted by the Appellant, i.e., from their balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized. 4.2 It becomes clear from the ST-3 return that the fact that appellant were discharging Service tax on Transport of Goods in container by Rail service and availing Cenvat credit and utilized the Cenvat credit was in the knowledge of the Revenue. However show cause notice to the Appellant was issued on 26-2-2013. Inasmuch as the entire information was in the knowledge of the Revenue, the longer period of limitation is not available. In view of these facts the show cause notice should have been issued within the normal period of one year as prescribed under section 73(1), whereas the show cause notice for the period April 2008 to March 2009 was issued on 26-2-2013 i.e. after prescribed limit of one year. As per the above fact, there is no suppression of fact on the part of the appellant. We also find that it is admitted fact that the appellant have taken service tax registration and are filing the periodical returns regularly. The appellant have maintained proper books of accounts in the normal course of business. It is pertinent to note that the entire case of the department on merit is that since appellant have availed Cenvat Credit, they violated the condition of abatement n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Income Tax Department for the purpose of tax deducted at source, etc. being the relevant data for Income Tax. Whereas under the Service Tax provisions, the service tax is chargeable on mercantile basis (accrual basis) on the service provided whether the value of such service is received or not. Thus, we find that the whole basis of show cause notice is incorrect and/or misconceived. 13.We further hold that the extended period of limitation is not available to Revenue under the facts and circumstances. We further hold that the appellant is entitled to exemption under the Notification No. 25/2012-S.T. under Sl. No. 13(a) of the said notification for providing consulting engineer services in the matter of road construction. When road construction is exempt, every activity is exempt relating to the road construction including consulting engineer services. The appellant also relied on the ruling in Lord Krishna Real Infra Pvt. Limited v. Commissioner of Customs, CE ST, Noida, Final Order No. 70126/2019, dated 27-12-2018. This Tribunal has held in other disputed cases, that even the barricade provided on the side of highway, maintaining greenery on the side or middle of highway, co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voked to demand Service Tax under the category of GTA service. Therefore, I hold that the Appellant is liable to pay Service Tax of Rs.4,31,764/-, along with interest, under the category of GTA service. 7.1. Since the information regarding collection of Service Tax was suppressed, the Appellant shall also be liable to pay penalty equal to the Service Tax confirmed under this category. 7.2. Further, I observe that the Appellant had taken registration under the category of GTA service only on 04.09.2013. Hence, I find that penalty has been rightly imposed on them under Section 77 of the Finance Act, 1994. Accordingly, I uphold the penalty imposed for non-registration under Section 77 of the Finance Act, 1994. 8. In view of the above, I pass the following order:- (i) The demand of Service Tax under the category of clearing and forwarding agency service for the extended period of limitation is set aside. The Appellant is liable to pay Service Tax for the normal period of limitation. No penalty shall be imposable for the demand confirmed under this category for the normal period of limitation. (ii) The issue is remanded back to the adjudicating authority for the purpose of quantificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
