The main legal point established in the judgment is that the proviso to Section 73(1) of the Act, which allows for the extended period of limitation, can only be applied in cases of deliberate suppression of information for the purpose of evading payment of duty. The Revenue must prove suppression of fact when invoking the extended period of limitation.

JUDGMENT

Vibhu Bakhru, J. The Revenue has filed the present appeal under Section 35G of the Central Excise Act, 1944 (as applicable to service tax matters by virtue of Section 83 of the Finance Act, 1994) impugning an order dated 11.08.2021 [Final Order No.ST/A/51725/2021-CU(DB)] passed by the Customs, Excise and Service Tax Appellate Tribunal (hereafter `the Tribunal') in Service Tax Appeal No.51379/2017.

2. The respondent, M/s Emaar India Ltd. (formerly known as `Emaar MGF Land Limited'), had filed the aforementioned appeal before the learned Tribunal impugning an order-in-original dated 31.01.2017 passed by the Commissioner, Service Tax (hereafter `the Commissioner'), whereby the Commissioner had confirmed a demand of Rs.2,44,48,095/- (Rupees two crores forty four lacs forty eight thousand and ninety five only) and had ordered recovery of the said amount, as being inadmissible Cenvat Credit under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 73(2) of the Finance Act, 1994 (hereafter `the Act'). In addition, the Commissioner had ordered recovery of interest under Section 75 of the Act. The Commisioner had also imposed penalty of an equivalent amount of Rs.2,44,48,095/- under Section 78 of the Act and a penalty of Rs.10,000/- for failing to file the correct ST-3 returns, disclosing the taxable income and Cenvat Credit in accordance with the provisions of Section 70 of the Act.

3. The aforesaid order-in-original was passed pursuant to a show cause notice dated 17.04.2014 issued by the Commissioner. The Tribunal found that the show cause notice was beyond the period as prescribed under Section 73(1) of the Act. The Commissioner had sought to recover the Cenvat Credit claimed by the respondent in respect of service tax liability for the period of July 2008 to January 2009. The learned Tribunal held that the extended period of limitation of five years was unavailable as there was no suppression of facts or any intention to evade tax.

4. The learned Tribunal also rejected the Revenue's contention that any liability could be imposed under the provisions of Section 73A of the Act, as proceedings under the said Section had been dropped by the Commissioner, and the Revenue had not preferred any appeal against the order-in-original dated 31.01.2017.

5. The controversy in the present case, essentially, relates to whether the services rendered by the respondent during the relevant period were taxable under the Act. At the material time, the respondent was engaged in undertaking construction activities for development of residential complexes and flats in southern India. The respondent claims that it had entered into two separate agreements with the purchaser of each flat. The first type of agreement was in respect of construction of the flat/unit and the other was an agreement for sale of the land. The first agreement was termed as `Construction Agreement', whereby the respondent had agreed to design and promote a residential project comprising of apartments of various sizes but of standard specifications in a development known as `Esplanade Project'. The second agreement for sale of land was in respect of an undivided share in the land proportionate to the size of the flat/apartment.

6. The respondent claimed that the said activity fell within the scope of the taxable service under Section 65(105)(zzzza) of the Act, `Works Contract' Service, which was taxable under the Act with effect from 01.06.2007. Accordingly, the respondent recovered service tax aggregating to Rs.5,30,67,272/- from flat buyers for the period of July 2008 to January 2009. The respondent deposited a sum of Rs.2,86,19,177/- and discharged the balance liability by utilizing the Cenvat Credit of Rs.2,44,48,095/-.

7. According to the Revenue, the services rendered by the respondent falls under the definition of Service of `Construction of Complex' as defined under Section 65(105)(zzzh) of the Act, which was chargeable to tax with effect from 01.07.2010