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2011 (2) TMI 1140 - ORISSA HIGH COURTCargo Handling Agent services - demand of service tax - invoking extented period - whether Asst. Commissioner has no competence to adjudicate the case? - Held that:- On the basis of the said terms and conditions of the contract between the parties it has come to the conclusion by the Assessing Officer and held that activity undertaken by the appellant squarely falls within the “cargo handling service” and service tax is payable on the gross amount received by the noticee. As the appellant received the amount for the cargo handling service rendered by them to M/s. MCL to the proper officer of Central Excise by not obtaining the registration, not paying service tax and not submitting any return with the intent to evade payment of service tax. The appellant failed to disclose wholly or truly all the material facts required for verification thereby the values of taxable service has escaped and service tax was not paid. Therefore, Assessing Officer held that the extended period in terms of Section 73(1)(a) of Chapter V of the Finance Act, 1994 is rightly invoked against the appellant and determined the tax recoverable under Section 68 read with Section 73 of the Finance Act, 1994 along with interest under Section 75 of the Act also imposed penalty of Rs. 500/- under Section 75A of the Act. The determination of service tax is quasi judicial power of the Asst. Commissioner of Excise and he has issued the show cause notice and proceeded with. After issuance of the notice to the appellant prior to issuance of the notification No. 30/2005-S.T., dated 10-8-2005 the officer of the above rank had no jurisdiction to decide the liability of the assessee in the absence of such mentioning in the notification. The proceedings were concluded by the assessing officer who had the jurisdiction in view of the power vested in him prior to the notification was issued. Therefore, he had the competency to proceed with the proceedings. The show cause notice is within the period of limitation as provided under clause (e) to Section 73(1) proviso of Chapter V of the Finance Act, wherein “one year” period is substituted by “five years” by amendment to the said provision. Against assessee.
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