2010 (5) TMI 313 - AT - Service Tax

Recovery of Service Tax - the appellants were found to have rendered taxable services falling under the category Clearing and Forwarding Agent without following the statutory formalities including payment of service tax due. Held that - since SCN had not alleged suppression of facts with an intention to evade payment of duty, impugned demand was not sustainable.

Summary

Issues:
- Whether the demand notice issued to M/s. Sudhakar Plastic Ltd. was barred by limitation?
- Whether the appellants suppressed facts with the intention to evade payment of service tax?
- Whether penalties imposed on the appellants were justified?
- Whether the impugned order was sustainable beyond the show-cause notice?
- Whether penalty could be imposed for the period prior to the introduction of relevant provisions?

Analysis:

Issue 1 - Limitation of Demand Notice:
The appellants contended that the demand notice issued on 26-9-2006 was barred by limitation as there was no allegation of suppression of facts in the show-cause notice. They argued that the notice was issued beyond the one-year period, which was the relevant date for computation of limitation. The Tribunal found merit in this argument, citing legal precedents where the extended period of limitation must be specifically stated in the show-cause notice. As the notice did not allege suppression of facts, the demand for the period 2002-03 to 2003-04 was held to be hit by limitation.

Issue 2 - Suppression of Facts:
The Commissioner (Appeals) found that the appellants had suppressed the fact of providing taxable services with the intent to evade payment of service tax, justifying the demand for an extended period and penalties. However, the Tribunal disagreed, noting that the show-cause notice did not contain allegations of suppression. Citing legal judgments, the Tribunal ruled that without specific grounds for invoking the extended period in the notice, the demand could not be sustained based on suppression of facts.

Issue 3 - Justification of Penalties:
The appellants argued that penalties could not be imposed under sections 76 and 77 of the Act if the delay in tax payment was due to a bona fide belief. They also contended that penalties could not be imposed for the period prior to the introduction of relevant provisions. The Tribunal agreed with the appellants, stating that penalties could not be imposed for the period before the introduction of penalty provisions.

Issue 4 - Sustainability of Impugned Order:
The Tribunal found that the impugned order went beyond the show-cause notice and was not sustainable. Relying on legal authorities, the Tribunal concluded that the demand could not be upheld without specific grounds for invoking the extended period in the notice. Therefore, the impugned order was set aside, and the appeal by the party was allowed.

In conclusion, the Tribunal ruled in favor of M/s. Sudhakar Plastic Ltd., setting aside the impugned order due to the lack of specific allegations in the show-cause notice, the incorrect application of provisions, and the unjustified penalties imposed.