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TMI Blog2016 (12) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... vice tax demand was raised against the assessee on the following grounds :- "During the period 10/9/04 to 31/3/06, the assessee received brokerage/incentive in respect of Initial Public Offering (IPO). During the same period the assessee also acted as share transfer agent for certain companies and received fees from them. On both these services, the assessee started paying service tax under the category of Registrar and share transfer agent which service was included in the statute took w.e.f. 01/5/06. Revenue took the view that these services for the above period (prior to 01/05/2006) would be liable to service tax under the category of Business Auxiliary Service and demanded service tax to the extent of Rs. 31,78,069/-. Demand also was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax. For the period prior to 01/5/06, no service tax can be levied on these services as held in the following case laws by the Tribunal :- (i) CCE, Indore vs. Ankit Consultancy Ltd. reported in 2007 (6) S.T.R. 101 ; (ii) CCE, Hyderabad vs. Sathguru Management Consultants Private Limited reported in 2007 (7) S.T.R. 654. 7. Service tax has been demanded in the show cause notice on the commission/brokerage received by the assessee for acting as share transfer agent as well as for work connected with initial/offer. These services have been notified for payment of service tax w.e.f. 01/5/06. It is also not in dispute that the assessee has discharged the service tax liability w.e.f the said date. It is fairly well settled that a servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eged that the assessee did not file the prescribed ST-3 Returns. It is alleged that the omissions and commissions of the assessee resulted in contravention of various provisions of the Act and Rules made there under. The various provisions of the law were contravened with the intend to evade the payment of service tax. Based on these allegations, extended period of limitation of five years has been invoked in the show cause notice. If the Noticees failed to assess the tax correctly for period between 01.04.2005 and 31.03.2006 and pay the tax on time and file correct ST-3 Return and extended period of limitation is to be invoked then the initial onus of proof that the assessee had intentionally evaded the tax was on the revenue. Only after t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where duty has not been levied or short-levied within six months from the relevant date. But this period to commence proceedings under proviso to the Section stands extended to five years if the duty could not be levied or it was short-levied due to fraud, collusion, wilful misstatement or suppression of facts etc. The proviso to Section 11 A reads as under: "Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any willful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder, with intent to evade payment of duty, by such person or his agent, the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt . In other words the assessee must deliberately avoid payment of duty which is payable in accordance with law. In Padmini Products v. Collector of Central Excise 1989 (43) E.L.T. 195, it was held that where there was scope for doubt whether case for duty was made out or not, the proviso to Section 11 A of the Act would not be attracted. (emphasis supplied) In the present proceedings no evidence has been brought on record to prove that the situations visualized in proviso to Section 73(1) existed. There is nothing on record to show that the assessee was aware that he was liable to pay tax and he intentionally evaded the payment of tax. In such circumstances it is unfair to invoke extended period of limitation. 3.5.1 In another decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and he deliberately evaded to pay the tax or the facts required to be disclosed to the revenue authorities were not deliberately and consciously disclosed to the revenue authorities. In the present proceedings only a few allegations have been made without adducing the evidence to support the allegations. The initial burden of proving that the situations visualized by proviso to Section 73 (1) has, thus, not been discharged. It is, therefore, unjust and unreasonable to invoke the extended period of limitation. Similarly with respect to allegation regarding excess utilization of the CENVAT credit, the last month for which the allegation of excess utilization of credit has been made is March 2007. The last date for filing the ST-3 Return fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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