Custom, Excise & Service Tax Tribunal
Shri Binod Kumar Varthuar vs Ranchi on 16 April, 2026
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
KOLKATA
REGIONAL BENCH - COURT NO.1
Service Tax Appeal No.75596 of 2017
(Arising out of Order-in-Original No.01/S.Tax/Commr./2017 dated 06.01.2017 passed
by Commissioner of CGST & Central Excise, Ranchi)
M/s Urmila RCP Projects Pvt. Ltd.
(3rd Floor, RCP Complex, Kadru, Ranchi-834002, Jharkhand)
Appellant
VERSUS
Commissioner of CGST & Central Excise, Ranchi
(C.R.Building, 5A, Main Road, Ranchi-834001)
Respondent
WITH Service Tax Appeal No.75597 of 2017 (Arising out of Order-in-Original No.02-03/S.Tax/Commr./2017 dated 13.01.2017 passed by Commissioner of CGST & Central Excise, Ranchi) M/s Urmila RCP Projects Pvt. Ltd.
(3rd Floor, RCP Complex, Kadru, Ranchi-834002, Jharkhand) Appellant VERSUS Commissioner of CGST & Central Excise, Ranchi (C.R.Building, 5A, Main Road, Ranchi-834001) Respondent AND Service Tax Appeal No.75828 of 2017 (Arising out of Order-in-Original No.01/S.Tax/Commr./2017 dated 06.01.2017 passed by Commissioner of CGST & Central Excise, Ranchi) Shri Binod Kumar Varthuar, Director of M/s Urmila RCP Projects Pvt. Ltd. (3rd Floor, RCP Complex, Kadru, Ranchi-834002, Jharkhand) Appellant VERSUS Commissioner of CGST & Central Excise, Ranchi (C.R.Building, 5A, Main Road, Ranchi-834001) Respondent APPERANCE :
S/Shri Nitin Kumar Pasari, Anand Kumar Pasari, Akshat Agarwal, Shubham Choudhary & Ms.Doyel Dey, all Advocates for the Appellant Shri D.Sue & Shri P.Das, Authorized Representatives for the Respondent 2 Service Tax Appeal Nos.75596,75597,75828 of 2017 CORAM:
HON'BLE MR.ASHOK JINDAL, MEMBER (JUDICIAL) HON'BLE MR.K.ANPAZHAKAN, MEMBER (TECHNICAL) FINAL ORDER NO.75499-75501/2026 DATE OF HEARING : 11 MARCH 2026 DATE OF PRONOUNCEMENT : 16 APRIL 2026 Per Ashok Jindal :
The appellants are in appeals against the two impugned orders wherein demand of service tax has been confirmed and various penalties were imposed on the appellants.
2. The facts of the case are that the appellant is a Company engaged in the business of Works contract for Government Works, Renting of Immovable Property and Sub-contract Works.
2.1 The appellant was initially registered in the name of M/s Urmila Enterprises, providing services of "construction service in respect of commercial or industrial building and civil structure". 2.2 With effect from 31.03.2008, the said Firm merged with the appellant herein, however, a fresh registration was taken only on 14.09.2011, though the firm M/s. Urmila Enterprises had its own registration and the same continued until the fresh registration was taken in 2011, under the category of „Works Contract Service‟. 2.3 Audit was conducted against M/s Urmila Enterprises and during the pendency of the audit, the appellant applied under VCES Scheme. While applying for VCES Scheme 2013, an amount of ₹50,47,000/- was declared to be the "service tax dues".
2.4 The said VCES application was rejected on the ground that since the audit is being carried out, the application is not maintainable. 3
Service Tax Appeal Nos.75596,75597,75828 of 2017 2.5 On 19.12.2014, the audit, which was going on, culminated into a Show Cause Notice dated 19.12.2014, raising an amount of ₹3,98,55,319/- and appropriation of amount already deposited. The aforesaid Show Cause Notice was for the period 01.10.2007 to 31.12.2012.
2.6 For the period 01.01.2013 to 31.03.2014, a Show Cause Notice was issued dated 25.02.2015 and another Show Cause Notice was issued for the period 2014-15 dated 31.03.2016, raising a cumulative demand arising of both the Show Cause Notices, for an amount of ₹7,02,33,302/-.
2.7 Both the demands pertaining to Show Cause Notice of 2014, as also, 2015 & 2016, were confirmed vide Order-in-Originals dated 16.01.2017 and 31.01.2017 respectively.
2.8 Aggrieved thereof, the appellant is in appeal by filing two separate appeals inasmuch as for the period 01.10.2007 to 31.12.2012, the demand was confirmed on 16.01.2017 and for the period 01.01.2013 to 31.03.2015, the demand was confirmed by a common order dated 31.01.2017. Hence two separate appeals were preferred. 2.9 The third appeal was filed by the then Director namely Shri Binod Kumar Bharthuar, against whom a penalty of ₹1.00Lakh was imposed in respect of the first Show Cause Notice.
2.10 As against the show cause, the following payments have been made:
ST APPEAL NO. 75596/2017
₹50,47,000/- Under Voluntary Compliance Encouragement Scheme (VCES) of 2013.4
Service Tax Appeal Nos.75596,75597,75828 of 2017 ₹54,09,106/- Through returns for the disputed period in Form ST-3.
₹22,57,500/- Through challans (not considered in order).
₹63,553/- Interest
ST APPEAL NO.75597/2017
₹78,21,018/- Through challans (not considered in order).
₹27,47,272/- Through challans (considered in order).
₹55,267/- Interest
3. During the course of Adjudication Proceeding, the appellant has taken following issues:
a) Non-Invocation of extended period of limitation under Section 73(1) of the Finance Act, 1994 read with Section 111 of the Finance Act, 2013 as no suppression, fraud or misrepresentation could be established.
b) Service tax could not be paid twice on the same service in case of Principal and Agent relationship as it will give rise to Natural Injustice.
c) To re-quantify the service tax liability considering the exemption benefits, which has not been provided in the absence of documents like 26AS/Form 16A and relevant documents etc.
d) Service tax paid, but not reflected in ST3 returns are not considered for appropriation against demand to be appropriated.
e) Penalty under section 78 has been invoked which is for demand in the case of fraud, willful suppression of facts but assessee has declared about the pending case in VCES calculation chart so not intentional suppression of facts.5
Service Tax Appeal Nos.75596,75597,75828 of 2017
f) Immunity from Penalty under section 78, 77(2), 77(1)(a), 77(1)(c)(i), 77(1)(c)(ii), 77(1)(c)(iii) and 78A. As per Section 73(1) as inserted by Finance Act, 2012, if any service tax is not levied or not paid or short levied or erroneously refunded, Central Excise Officer shall issue a show cause notice for demand within 18 months from relevant date. As per Section 73(6)(i)(b), in case where no return was filed, Relevant date is the last date on which the return should have been filed under Service Tax Rules.
Provided that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of-
a) Fraud; or
b) Collusion; or
c) Wilful mis-statement; or
d) Suppression of facts; or
e) Contravention of any of the provisions of this Chapter or of the rules made there under with intent to evade payment of service tax, by the person, Chargeable with theservice tax or his agent, the provisions of this sub-section shall have effect, as if, for the words "eighteen months", the words "five years" had been substituted.
In the instant case, show cause notice has been issued on 19.12.2014 for the period October 2007 to March 2012 which is far beyond the time limit of eighteen months in any case. Therefore, demand for the period is time barred by limitation.
6
Service Tax Appeal Nos.75596,75597,75828 of 2017 In the Impugned Order, it has been mentioned that appellant has provided services as main contractor to works awarded by the main contractor (M/s Mackintosh Burn Ltd) but did not discharge the liability of service tax under the false perception that the main contractor has paid service tax in lieu of them.
3.1 In the Impugned Order, it has been accepted by the Adjudicating Authority that some of the projects were related to government buildings and are non-commercial in nature.
3.2 In the Impugned Order, the Ld. Adjudicating Authority has raised the point that Balance Sheet is an important document which contains details of the entire year and the figures mentioned therein cannot be simply brushed aside. It is for the Appellants, who have prepared the Balance Sheet, to prove how the figures mentioned therein are false relying upon the case of The CESTAT, Northern Bench, New Delhi in case of Carbon India Vs. Commissioner of Central Excise, Kanpur vide Order Nos.895-897/2003-NB(B) dated 03.12.2003 [2004(164) ELT 363 (Tri-Del)]. So when Ld. Adjudicating Authority is of the view that balance sheet is an important document and he has also been mentioning that work is of non-commercial in nature and also related to Government, then why exemption benefits are not allowed, the order is silent.
3.3 The appellant typically receives payment for the work performed after a period of approximately four to six months, and in some cases, even later. While filing the ST-3 return, the gross value of services rendered along with the applicable service tax is required to be declared. However, since the Appellant does not receive the payment, 7 Service Tax Appeal Nos.75596,75597,75828 of 2017 including the service tax component, by the time the return is due for filing, such amounts were not disclosed, as the corresponding service tax liability would also need to be reported and discharged. 3.3 Due to financial constraints, the appellant did not include these amounts in the ST-3 returns. Nevertheless, the appellant duly paid the service tax on the taxable value of services as and when the payments were actually received. It is pertinent to note that a Service Tax Return can only be revised within three months from the date of filing the original return, after which revision is not permitted. 3.4 Accordingly, the appellant was unable to file revised returns beyond the prescribed time limit due to system restrictions. Therefore, the non-reflection of certain service tax payments in the ST-3 returns is not due to any default in tax payment, but is merely a procedural lapse in return compliance.
3.5 The appellant voluntarily came forward to discharge service tax liability for the period from July 2009 to December 2012; however, the order has been adjudicated for the period from October 2007 to March 2012. As a result, several challans have not been taken into account for appropriation against the service tax liability. Accordingly, the same should be duly appropriated.
3.6 The details of works contract entered by the appellant are tabulated as under:
For the period January 2013 to March 2014 S.No. PARTY NAME NATURE OF WORK SERVICE TAX
a) M/s Kirloskar Appellant has done the civil work PAID Brothers Limited for Thermal Power Project- Water System Package at Koderma
b) M/s Hindustan construction of school building at 8 Service Tax Appeal Nos.75596,75597,75828 of 2017 Steel Works JNV Purulia. The structure is Construction Ltd meant predominantly for EXEMPTED educational use.
c) Jharkhand State Construction of 6000 MT capacity Agricultural Board, storage godown meant for Hazaribagh predominantly for use other than EXEMPTED for commerce, industry or any other business or profession.
d) Construction of residential unit for Rabindra residential unit for Kishore Sinha EXEMPTED Rabindra Kishore Sinha
e) Construction of residential unit for MeeraTiwari EXEMPTED residential unit for MeeraTiwari
f) Makintosh Burn work of Construction of Intake Paid by M/s.
Ltd. Well at DVC, RTPS. Makintosh
Burn Ltd.
g) M/s National Construction of B Type Quarters
Buildings (13 Blocks Three Storied) and C
Construction Type Quarters (G+1 Two Blocks)
Corporation Ltd., at DVC, RTPS, Raghunathpur PAID
Ranchi (W.B.) for the period 01.01.2013
to 31.03.2014.
h) Construction of Two Nos. Multi- EXEMPTED
storeyed Faculty Accommodation
(G+7) at IIT, Kharagpur for FY
2013-14. construction of a
residential complex predominantly
meant for use of their employees
i) Construction Boundary Wall, Road,
Paved Area, Bench, External Water
Supply, External Sewerage
&Drainage System, Water Supply
Pumps etc. for A Type (G+7)
Faculty Accommodation at IIT, EXEMPTED
Kharagpur (W.B.) for FY 2013-14.
Meant for predominantly for use
other than for commerce, industry
or any other business or
profession
j) Construction of proposed Four
Storied Boys Hostel for Central
Tool Room & Training Center at
Bonhooghly, Kolkata. Meant for EXEMPTED
predominantly for use other than
for commerce, industry or any
other business or profession.
k) Construction of up gradation of
Archaeology, Paleo & Cultural
Anthropology etc, Galleries at
9
Service Tax Appeal Nos.75596,75597,75828 of 2017 Indian Museum, Kolkata. Work is provided to government for repair, EXEMPTED maintenance, or renovation of historical monument or remains of national importance.
l) Renovation and upgradation
galleries of Indian Museum,
Kolkata (W.B.). Work is provided
to government for renovation of EXEMPTED
historical monument or remains of
national importance
m) Construction of Regional Training
Centre with Hostel for Subsidiary
Intelligency Bureau at
Baishnahghata, Patuli. Meant for EXEMPTED
predominantly for use other than
for commerce, industry or any
other business or profession
n) Construction of Swimming Pool at
VisvaBharati, Shantiniketan, West
Bengal. Meant for predominantly
for use other than for commerce, EXEMPTED
industry or any other business or
profession
For the period April 2014 to March 2015
S.N. PARTY NAME NATURE OF WORK SERVICE
TAX
a) M/s Kirloskar Appellant has done the civil work PAID
Brothers Limited for Thermal Power Project- Water
System Package at Koderma
b) M/s Hindustan construction of school building at
Steel Works JNV Purulia. The structure is
Construction Ltd meant predominantly for EXEMPTED
educational use.
c) Jharkhand State Construction of 6000 MT capacity
Agricultural Board, storage godown meant for
Hazaribagh predominantly for use other than EXEMPTED
for commerce, industry or any
other business or profession.
d) M/s Damodar Urgent constructionn of Pipe Rack
Valley Corporation Pedestals for Cross Country PAID
Pipeline at Chainage 5+040 of
KTPS PVC, Koderma
e) M/s National Construction of Approach Road to
Buildings CISF Complex (From 4 Lane to
Construction near CISF Office &Armory) for
Corporation Ltd., CISF Complex at DVC, KTPS, EXEMPTED
Ranchi Koderma. The said work is for
construction of road for use by
10
Service Tax Appeal Nos.75596,75597,75828 of 2017 general public.
f) Construction of B Type Quarters (13 Blocks Three Storied) and C Type Quarters (G+1 Two Blocks) at DVC, RTPS, Raghunathpur PAID (W.B.) for the period 01.01.2013 to 31.03.2014.
g) Construction of Two Nos. Multi-
storeyed Faculty Accommodation (G+7) at IIT, Kharagpur for FY 2013-14. construction of a EXEMPTED residential complex predominantly meant for use of their employees
h) Construction Boundary Wall, Road, Paved Area, Bench, External Water Supply, External Sewerage & Drainage System, Water Supply Pumps etc. for A Type (G+7) Faculty Accommodation at IIT, EXEMPTED Kharagpur (W.B.) for FY 2013-14.
Meant for predominantly for use other than for commerce, industry or any other business or profession
i) Construction of Staff Housing (90 Staff Qtrs.) at IIT, Kharagpur (W.B.) The said work is provided to government by way of EXEMPTED construction of a residential complex predominantly meant for use of their employees.
j) Construction of Sister Nivedita Hall of Residence at IIT, Kharagpur (W.B.). The said work is provided to government for construction of building for students at IIT, EXEMPTED Kharagpur.
k) Construction of proposed Four Storied Boys Hostel for Central Tool Room & Training Center at Bonhooghly, Kolkata. The said EXEMPTED work is meant for predominantly for use other than for commerce, industry or any other business or profession
l) Construction work of Generator room for CTTC Bonhooghly, PAID Kolkata
m) Restoration of Gupta Niwas, Indian Statistical Institute, Kolkata. Meant predominantly for use as EXEMPTED 11 Service Tax Appeal Nos.75596,75597,75828 of 2017 educational establishment.
n) Renovation and upgradation
galleries of Indian Museum,
Kolkata (W.B.). Work is provided
to government for renovation of EXEMPTED
historical monument or remains of
national importance.
o) Renovation and upgradation of BSI
Gallery at Indian Museum
Complex, Kolkata. Work is
provided to government for EXEMPTED
renovation of historical monument
or remains of national importance.
p) Construction of Regional Training
Centre with Hostel for Subsidiary
Intelligency Bureau at
Baishnahghata, Patuli. Meant for
predominantly for use other than EXEMPTED
for commerce, industry or any
other business or profession
q) Construction of Swimming Pool at
VisvaBharati, Shantiniketan, West
Bengal. Meant for predominantly
for use other than for commerce, EXEMPTED
industry or any other business or
profession.
4. In the above set of facts, the ld.Counsel for the appellants has raised the following issues for consideration :
(i) Whether the proceedings for the period 2007-2012, had become time barred, since the Show Cause Notice is dated 19.12.2014 ?
(ii) Whether Form 26AS and the Profit & LossAccount can be the basis for raising demand and continuing the proceedings ?
(iii) Whether the exemption which is available to the Appellant could be denied, only because the Government Department at the adjudication proceeding did not certify the same ?
(iv) Whether the payment of service tax made under the head „renting of immovable property, as also, „goods transport agency‟(on 12 Service Tax Appeal Nos.75596,75597,75828 of 2017 reverse charge) could be ignored, when the payment challans were on record ?
(v) Whether once the principal contractor has made the payment of service tax in relation to a particular contract, the sub-contractor can still be asked for payment of service tax ?
4.1 As regards the Issue No.(i) of applicability of extended period of limitation, it is stated that the appellant have been regularly filing their ST-3 returns and the Appellant‟s records have been regularly audited by the Audit Wing of the Department and the Appellant have been complying with audit objection. The Appellant have also submitted audit reports and compliance thereof. Further, Adjudicating Authority has not made any observation as to how suppression of facts is invokable when regular Audit of records have been conducted by the Revenue. The Hon‟ble Supreme Court has laid down guidelines for invoking extended period of limitation. The Court has observed that extended period of 5 years is not invokable when there is no wilful misstatement or suppression involved. Mere failure to pay duty without any collusion, fraud or wilful misstatement, is not sufficient to invoke extended period of limitation. In support of his contention, he relies on the following decisions :
(i) Easland Combines vs. Collector of c. Ex., Coimbatore, 2003 (152) E.L.T. 39 (S.C.).
(ii) I t w Signode India Ltd. vs. Collector of Central Excise 2003 (158) E.L.T. 403 (S.C.).
(iii) Commissioner of Central Excise, Bangalore-1 Vs. MTR Foods Limited 2012 (282) ELT 196 (Kar).13
Service Tax Appeal Nos.75596,75597,75828 of 2017
(iv) Commissioner of C.Ex. Aurangabad Vs. Yeshwant Industries 2014 (313) ELT 667 (Tri - Mumbai).
(v) Trans Engineers India Pvt. Ltd. Vs. Commissioner of C.Ex., Pune 2015 (40) STR 490 (Tri-Mumbai).
(vi) Khaira and Associates Vs. Commr. of Cus., C.Ex. & S.T., Bhopal 2020 (34) GSTL 224 (Tri-Del).
(vii) Commissioner Central Excise, Bangalore Vs. M/s Pragathi Concrete Products (P) Ltd, 2015-TIOL- 223-SC-CX 4.2 As regards Issue No.(ii), the ld.Counsel for the appellants submits that it is a settled law that the quantification of liability on the basis of invocation of the provisions of best judgment assessment must be based on cogent material and it is an undisputed fact that the levy of service tax cannot be based solely on the amounts on which the TDS has been deducted and reflected in Form 26AS. It is also submitted that the provisions determining the nature of the transaction (service or not), nature of service involved, the applicable rate of tax, the value of services and the person who is required to pay the tax (forward or reverse charge) are different from the provisions under Income Tax Act providing for deduction of TDS. Hence, the method adopted by the Assessing Officer of taking the differential amount by invoking the provisions of best judgment assessment is not in accordance with law. The provisions of best judgment assessment even for the valuation of service are attracted only if the concerned person (a) fails to furnish the return or (b) if the return has been filed in that case, he fails to assess the tax in accordance with law. Therefore one needs to consider 14 Service Tax Appeal Nos.75596,75597,75828 of 2017 factually whether the given ingredients are satisfied or not to permit the invocation of Section 73. In support of his contention, he relies on the following decisions :
(i) M/S LUIT DEVELOPERS PRIVATE LIMITED VS COMMISSIONER OF CGST & CENTRAL EXCISE, DIBRUGARH Final Order No.75120/2022 dated 23.02.2022 (Service Tax Appeal No.75792/2021) ;
(ii) KUSH CONSTRUCTIONS V. CGST NACIN 2019 (24) G.S.T.L. 606 (Tri. - All.), Therefore, it is contended that the impugned order issued without categorically identifying the nature of taxable service involved, may not be valid on the aforesaid grounds.
4.3 As regards Issue No.(iii), he submits that the Adjudicating Authority in the show cause notice and in the impugned order, have itself recognised the works done by the Appellant as exempted in terms of the notifications issued by the Board from time to time, moreover, the said Authority at the time of issuance of show cause notice had prepared a tabular chart appended as Annexure-20 to the Show Cause Notice inter alia showing all the works contracts of the Appellant to be exempted. However, the Authority has denied extending the benefit of the same solely on the ground that the same were not certified by the concerned Government Department. He further submits that it is also not in dispute that the contracts which were taxable under the Service Tax, liability of the same have been discharged by the Appellant, though belatedly. The same could not have been brushed aside and the entire turnover of the Appellant could not have been charged with service tax. He further contends that it has been held by different 15 Service Tax Appeal Nos.75596,75597,75828 of 2017 forums that an exemption available to an Assessee cannot be denied solely on the grounds that a Government Department or agency failed to certify it during adjudication proceedings, provided the substantial conditions for the exemption are met. In the instant case, the substantial conditions have been met and there was no reason for the Government Departments to certify the same in order to extend the benefit of exemption to the Appellant. Moreover, the Authorities were in possession of the entire accounts of the Appellant including Form 26AS wherein the quantum of consideration already received by the Appellant was reflecting and from which the same could have been verified. However, such an exercise was not done by the authority, rather the Authorities chose a long route, writing to the Government Department to certify the quantum paid by them during the period under consideration.
4.4 As regards Issue No.(iv), he submits that the appellants at the time of adjudication proceedings have specifically contended that the appellant usually receives payment for services after four to six months, sometimes later. When filing the ST-3 return, the gross value of services and applicable tax must be declared. However, since payments (including the tax component) were not received by the filing due date, these amounts were omitted to avoid reporting liability prematurely. Due to financial constraints, the Appellant excluded such amounts from returns but paid service tax promptly upon receipt of payments through challans. As returns can only be revised within three months, later corrections were barred by system restrictions. Thus, the non-reflection of certain payments in ST-3 returns was a procedural lapse, not a 16 Service Tax Appeal Nos.75596,75597,75828 of 2017 default in tax payment, since the tax liability were discharged through challans. Hence, the payment challans which were on record could not have been ignored, rather the same ought to have been set off from the liability determined by the Authority.
4.5 As regards Issue No.(v), he submits that in respect of liability of tax payment by the Appellant where their main contractors have already paid the tax on their behalf, this remained a vexed issue for the assesses for over the period of time. It would be pertinent to examine it in light of some orders of the Tribunal pronounced from time to time. In support of his contention, he relies on the following case laws :
(i) Vijay Sharma & Co. Vs. Commissioner of Central Excise Chandigarh 2010 (20) STR 309 (TRI-LB) ;
(ii) Loan Star Engineers Vs. Commissioner of Central Excise Panchkula 2017 (47) STR 133 (Tri Chan) ;
(iii) Commissioner of New Delhi Vs. Melange Developers Pvt.
Ltd. 2020 (33) GSTL 116 (Tri-LB) ;
(iv) Om Sai Fabricators Vs. Commissioner of Service Tax Raigarh (2023) 6 CEN-TAX 2010 (SC) ;
Hence, the Tribunals/Courts have been accepting tax payment by the service recipient as valid payment as the same was revenue neutral exercise till 2020, thereafter, the issue stands settled and it is service provider/sub-contractor to pay tax even if the main contractor / service recipient has discharged the tax liability on his behalf (Appellant). Hence, this was a legal dispute which involved interpretation of law and mala-fide intention or suppression with intent to evade payment of service tax cannot be attributed to the Appellant. It is further stated 17 Service Tax Appeal Nos.75596,75597,75828 of 2017 that since the issue has been settled, the appellant admits to pay the liability as a sub-contractor.
4.6 He finally submits that the proceedings initiated against the appellant as also the impugned Orders suffer from serious infirmities both on limitation and on merits and the extended period of limitation cannot be invoked in the absence of suppression or wilful mis- statement, particularly when the appellant‟s records were regularly audited and returns duly filed. Reliance on Form 26AS and Profit & Loss Accounts as the sole basis for demand is legally untenable, as service tax liability must be determined by the nature of services and statutory provisions, not income tax records. He further submits that the denial of exemption merely for lack of departmental certification, ignoring payments already made under valid challans, and overlooking the settled position on sub-contractor liability prior to 2020, all point to a misapplication of law. The exempted turnover of the appellant is also liable to be deleted completely. The cumulative effect of these factors establishes that the demand, interest, and penalties imposed are unsustainable. He, therefore, prays that the impugned orders deserve to be set aside by allowing their appeals.
5. The ld.A.R. for the Revenue, supported the impugned order and submitted that the appellant did not provide relevant documents in contracts, therefore, the demand has been rightly confirmed against the appellant.
6. Heard both the parties and considered the submissions.
7. We find that the appellant has taken the issue on limitation as in the first show-cause notice dated 19.12.2014, the demand has been 18 Service Tax Appeal Nos.75596,75597,75828 of 2017 raised by invoking extended period of limitation for the period 01.10.2007 to 31.12.2012. Admittedly, a part of the demand is beyond the period of five years, the same is not sustainable. Moreover, the appellant was paying service tax on the services, which were liable to be taxed. The appellant has also taken a ground that the extended period of limitation is not invokable and they contended that it cannot be alleged that they have suppressed the facts. The said issue is to be examined by the adjudicating authority on the basis of the documents supplied by the appellants.
8. Further, the demand of service tax has been raised against the appellant on the basis of Form 26AS as best judgement assessment as the appellant has failed to furnish the ST-3 Returns and could not pay the service tax properly.
9. In fact, the claim of the appellant is that they were providing taxable services and as well as exempted services during the impugned period and it is the claim of the appellant that on taxable services, they were paying service tax and that services which were exempted, the appellant is not paying service tax. Moreover, being a sub-contractor, as the main contractor has paid the service tax, therefore, it is the claim of the appellant that the issue was decided that if the sub-contractor is provided the services to the main contractor, the sub-contractor is liable to pay the service tax in terms of the judgement of this Larger Bench decision of this Tribunal in the case of Melange Developers Pvt. Ltd. :
2020 (33) GSTL 116 (Tri-LB). In that view, as the main contractor has paid the service tax on the work executed by the appellant on behalf of the main contractor and issue was in dispute that whether in case the 19 Service Tax Appeal Nos.75596,75597,75828 of 2017 main contractor has paid the service tax, the sub-contractor is liable to pay service tax or not ? Therefore, there is no revenue loss. In that case, being a sub-contractor, the appellant is not liable to pay service tax till the decision of the Larger Bench of this Tribunal in the case of Melange Developers Pvt. Ltd. (supra). As the adjudicating authority has not examined the service rendered by the appellant, which are exempted service, being mainly the service provided by the appellant for use other than for commerce, industry or any other business or profession. If the appellant has provided the services for use other than for commerce, industry or any other business or profession, in that circumstances, the services provided by the appellant are exempted services. The same is to be examined by the adjudicating authority on the basis of work orders supplied by the appellant.
10. In view of the above, we set aside the impugned order and remand the matter back to the adjudicating authority to verify the works order, against which, the appellant has executed the works and if they are in nature for use other than for commerce, industry or any other business or profession, the appellant is not liable to pay service tax.
11. The appellant is also directed to provide all the details/works order or documents in support of their claim within one month from the date of receipt of this order and thereafter, the adjudicating authority shall verify the works order whether they are in nature of exempted service or not and the adjudicating authority shall pass the order accordingly in terms of law.
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Service Tax Appeal Nos.75596,75597,75828 of 2017
12. It is pertinent to mention here that the adjudicating authority shall examine the issue on extended period of limitation also.
13. In these terms, the appeals are disposed off by way of remand.
(Pronounced in the open court on 16.04.2026) (Ashok Jindal) Member (Judicial) (K.Anpazhakan) mm Member (Technical)