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TMI Blog2012 (8) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... d raised beyond the period of limitation is barred by limitation - no penalty is imposable upon the appellants - ST/400/2007, ST/125/2008, ST/693 & 700/2007 and ST/557 & 186/2008 - ST/529-534/2011(PB) - Dated:- 21-9-2011 - Ms. Archana Wadhwa, Shri Rakesh Kumar, JJ. REPRESENTED BY : S/Shri B.L. Narsimhan and Udai Aditya Banerjee, Advocates, for the Assessee. Shri B.L. Soni, SDR, for the Department. [Order per : Archana Wadhwa, Member (J)]. All the appeals are being disposed of by a common order as the issue involved is identical in all the appeals. 2. As per facts on records, the appellants are providers of cellular telephone services which are covered by the definition under Section 65(74) of chapter V of Finance Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while accepting the Revenue s stand has observed that Since the dispute was bona fide and it is settled based on the observations of the Supreme Court, we feel levy of penalty under section 73 of the Finance Act, 1994 was not tenable. While upholding the demand of service tax on value of SIM cards and the interest thereon, we hold that no penalty could be levied on the respondent under section 73 of the Act. 5. Based upon the observations of Hon ble Kerala High Court, learned Advocate submits that inasmuch the Tribunal s order was in favour of the assessee, there could be no question of mala fide on their part so as to invoke the longer period of limitation. He also draws our attention to various other decision of the Tribunal laying d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be invoked. As such, he pleads that the demands beyond the normal period of limitation be set aside alongwith setting aside imposition of penalties. 6. As against the above, learned SDR appearing for the Revenue draws our attention to the findings of the lower authorities, holding against the appellants, while dealing with their submission that they have been filing regular returns, depositing tax in time, with every detail given to the Revenue. The adjudicating authority has observed that though it is correct that they were filing regular returns but the fact that they were not including the value of the sale of SIM card in gross taxable value, it came to the knowledge of the department only when the audit of the company was conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not taking licence or not paying duty is not sufficient to invoke extended period. Further, the Hon ble Supreme Court in the case of Cosmic Dye Chemical v. C.C.E., Bombay reported in (1995) 6 Supreme Court Cases 117 = 1995 (75) E.L.T. 721 (S.C.), has observed that mala fide intention is an essential element for invokation of longer period of limitation. There being different views of High Courts expressing conflicting opinion on the point of dispute are sufficient for any person to entertain a bona fide belief. In the circumstances, mis-statement or suppression of facts, if any, cannot said to be wilful. 10. We note that the reliance by the learned SDR on the Hon ble Gujarat Court s decision in the case of Neminath Fabrics reported as 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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