Order date – 21 November 2022

 Facts –

• The Appellant, M/s Babulal Gurjar, is engaged in civil construction/works contract service etc. and registered with the department w.e.f. 25/11/2016. Appellant had filed ST-3 returns from and the period October 2016 to March 2017 and April 2017 to June 2017, and also paid the admitted tax.
• The revenue called for information from the appellant, with regard to his service tax liability during the period 01/04/2014 to 30/09/2016. As no information was submitted by the appellant, it appeared to revenue that it is not possible to as certain the nature of services provided by the appellant.
• Accordingly, show cause notice dated 16/10/2019 was issued invoking the extended period of limitation based on the information received from Income Tax Department demanding service including cess and alleged that appellant have wilfully suppressed the facts from the department with intent to evade payment of tax.
• Aggrieved appellant had filed an appeal

Issue –

• Whether the appellant has willfully suppressed the fact from the department to evade payment of tax?

Order –

• The Tribunal finds that the appellant had taken suo moto registration in November 2016 and had started making compliance by filing Return and depositing admitted tax w.e.f. 01/10/2016. Further, the appellant have maintained proper records of its transactions and turnover. They have also filed their IT-returns.
• There is no suppression or failure on the part of the appellant to make compliance under the service tax provisions. Rather revenue has chosen to not make any enquiry for the period prior to 01/10/2016, soon after taking of registration in November 2016.
• Thus, allegation of revenue that appellant have concealed its particulars of turnover from service tax department, and revenue came to know upon receipt of information only in 2019 on the basis of data received from the Income Tax Department is vague and frivolous. Thus, it is held that the show cause notice is bad for invocation of extended period of limitation.
• Further the tribunal finds that during the period under dispute, almost the whole turnover for providing service is in respect to work done in packing plant-maintenance job for Shree Cement Ltd. Further, the appellant have received the hire charges for JCB, through bank and have also maintained proper records. Also finds that Clause (f) of Section 66D provides that services by way of carrying out any process amounting to manufacture or production of goods, falls under the negative list and is exempted from the levy of service tax.
• The Tribunal further finds that the classification of service under Works Contract Service by the Commissioner (Appeals) is beyond the scope of show cause notice, and is held to be bad. Hence the appeal is allowed.