The Customs, Excise & Service Tax Appellate Tribunal New Delhi ruled that once the returns were filed regularly by Appellant the Department cannot alleged suppression against the Appellant/Assessee.
Facts
The appellants are engaged in providing the taxable services of ―Consulting Engineer Service‖ (CES) to their major clients for providing consultation for road, bridges, tunnels etc. to their clients namely M/s Euro Studio, Spain, M/s Euro Studio, SL, Jammu & Kashmir and M/s NHAI, M/s Getinsa Ingeneria. Based on an intelligence gathered by the Department, the registered premises of appellant were searched, however, the premises were found to be the residential locked premises and their corporate office was found existing at Sector 49, Sohna Road Gurgaon, instead of being at their registered place in Paschim Vihar, New Delhi. The corporate office premises were also searched.
Submissions
Advocate Abhishek Rastogi and Manindre N. Verma, for the appellant service tax was otherwise not payable on construction of roads made anywhere in India post 01.07.2012. Though the services, in question, were covered under ―other than negative service‖, but still those were exempted under the Mega Exemption Notification exempting any service provided in relation to construction of road.
The Departmental Representative while submitting for the department has impressed upon the correctness of the findings in the order under challenge. It is mentioned that the agreements entered into by the appellant with their service recipient were duly considered by the Adjudicating Authority and it has rightly been held that those agreements reveal that the work undertaken by the appellant was never required to be undertaken at the site of the client.
Decision
The two member bench of Dr. Rachna Gupta) Member (Judicial) And Hemambika R. Priya Member (Technical) said that any of the documents, as mentioned in Clause (a) to (g) of the Rule 9 of Cenvat Credit Rules, 2004 is sufficient for availment of Cenvat credit as per Clause 9 (f) an invoice/bill or challan issued by the provider of input service is a relevant document.
The bench observed that there is no denial of the Department about the requisite price available on the invoices based whereupon the Cenvat credit has been availed by the appellant.
The bench held that Cenvat credit has been properly availed by the appellant based on the invoices.
The bench opined that It is mandatory for the department to bring on record a positive act of the to prove the alleged suppression that too with an intent to evade tax.
The Tribunal held that once it is not the case of suppression with an intent to evade tax and once the appellant is held not liable to pay the service tax in the given facts and circumstances, the department was not entitled to invoke the extended period of limitation. The question of imposition of penalty upon the appellants also does not at all arise.
Case title: Shri Ajay Mishra, Director M/s Segmental Consulting & Support Services Pvt. Ltd. v/s Commissioner of Service Tax, Delhi
Citation: Service Tax Appeal No. 51616 Of 2017