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TMI Blog2017 (5) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax liability on the appellants for the period from 18/04/2006 in terms of Section 66A of Finance Act, 1994. However, no penalties were imposed except in two cases where penalty under Section 76 alongwith Section 77 (one case) was also imposed. 2. Contesting the impugned orders the learned Counsel for the appellant submitted on the following grounds :- (a) The appellants are entitled for Cenvat credit on the service tax now demanded and the said credit is refundable under Rule 5 of Cenvat Credit Rules, 2004 or under Rule 18 of Central Excise Rules, 2002. Further, the commission paid to the foreign agent is eligible for exemption for part of the period, under Notification 41/2007-ST, as amended by Notification No.17/2008-ST ; (b) the whole of service tax now demanded is available as a credit to the appellants and, as such, it is a revenue neutral situation and the demands was not sustainable on this ground alone. On the issue of revenue neutrality even the Original Authority dropped the demand in a similar set of facts vide order dated 29/07/2016 issued with reference to M/s Shree Nath Gum & Chemicals, Jodhpur and vide order dated 25/11/2016 in respect of M/s Mec Shot Blasti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended period. In case, if the demand was issued for extended period it does not mean that the normal period demand cannot be part of the same. In other words, prior to 10/05/2013 it is not the case that for each proceedings involving longer period two show cause notices are to be issued one for normal period and another for extended period. Such proposition will be legally unsustainable. 4. We have heard both the sides and perused the appeal records. 5. Admittedly, the appellants did avail services of foreign selling agents and such services are clearly covered by the tax entry Business Auxiliary Services in terms of Section 65 (19) of the Finance Act, 1994. Even the appellants do not challenge the legal position in this regard. However, the demands are contested on various other technical grounds. 6. The first one is to the effect that the demands are not sustainable as there is a revenue neutral situation. In case the service tax is paid on such services the appellants are eligible for credit of tax paid and thereafter eligible for refund of such tax under Rule 5 of Cenvat Credit Rules, 2004. The appellants relied on certain case laws in this regard. Tribunal in the case of T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case regarding limitation. Wherever the demands issued invoking the provisions applicable to extended period, we find that the same is not legally sustainable for such longer period. The Original Authority himself recorded that the issue is one of interpretation of provision of law and refrained from imposing penalty. It is relevant to note that the penalty was not waived under the provisions of Section 80, but the penalty was held to be not imposable. A perusal of the impugned orders indicate that no sustainable reasons were recorded to support the demand for extended period. We find, only a passing remark to the effect that the appellant did not inform the facts to the Department and these facts came to the notice of the Department only at the time of enquiry and, hence, the appellants suppressed the facts from the Department. We find such summary assertions cannot support the demand for extended period. Admittedly, the tax liability under reverse charge basis itself is a new concept and was subjected to various litigations and clarifications. In such situation, we find no scope for invoking extended period for demand of service tax. There is no case for fraud, collusion, willfu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of - (a) fraud ; or (b) collusion ; or (c) willful mis-statement ; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, by the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as if, for the words "["eighteen months"], the words "five years" had been substituted". 11. It is clear that in show cause notice for demand of service tax short paid or not paid can be issued only under the provisions of sub-Section (1) of Section 73. The proviso to the said sub- Section does not form the basis for demand of service tax. The said proviso only has got the effect of fixing the time period of 5 years instead of 18 months for issue of show cause notice, if such short payment is by any one of the reasons mentioned the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.) held that law of limitation is generally regarded as procedural and its object is not to create any right but to prescribe periods within which legal proceedings be instituted for enforcement of rights which exist under substantive law. The Hon'ble Supreme Court held as below :- "15. Law on the subject has also been elaborately dealt with by this Court in various decisions and reference may be made to few of those decisions. This Court in Garikapati Veeraya v. N. Subbiah Choudhry & Ors. - AIR 1957 SC 540, New India Insurance Company Limited v. Smt. Shanti Mishra - (1975) 2 SCC 840, Hitendra Vishnu Thakur & Ors. v. State of Maharashtra & Ors. - (1994) 4 SCC 602; Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar & Ors. - (1999) 8 SCC 16; Shyam Sundar & Ors. v. Ram Kumar & Anr. - (2001) 8 SCC 24, has elaborately discussed the scope and ambit of an amending legislation and its retrospectivity and held that every litigant has a vested right in substantive law but no such right exists in procedural law. This court has held the law relating to forum and limitation is procedural in nature whereas law relating to right of appeal even though remedial is substantive in nature. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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