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TMI Blog2017 (8) TMI 1441X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation for issuing notice to show cause why service tax should be not paid or realised is dependant upon the omission or failure on the part of the assessee in filing the return u/s 70 of the Act is five years from the relevant date. The bonafides of the assessee or any confusion or difference in opinion as to the categorisation of the service are not at all relevant factors for the purposes of issuing notice under the aforesaid provision. The only thing that is relevant is omission to file return - In the case at hand, it is admitted on record that the respondent had not got itself registered and had failed to file return within the prescribed period of time. Thus, the period for issuing notice u/s 70 of the Act is five years on ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut that of management consultant. The CESTAT vide order dated 25.01.2006 remanded the matter to the Commissioner (Appeals) to decide afresh as to the nature of services rendered by the respondent. On remand, the Commissioner (Appeals) vide order dated 12.10.2006 held that the services rendered by the respondent are actually that of management consultant and in view of the genuine dispute as to the category in which the services as rendered by the respondent would fall ordered to reduce the penalty. The CESTAT by the impugned order has upheld the order of the Commissioner (Appeals) on merits, but opined that the demand of tax by treating the period of limitation to be five years is bad in law. In other words, the CESTAT expressed op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that question whether there is suppression of facts is a question of fact depending upon the facts and circumstances of the particular case. In CCE, Allahabad v. U.P. State Yarn Co. Ltd., 2010 (251) ELT 16 (All.) , it has been held that where question is based on the findings recorded by the Tribunal on appreciation of evidence and material on record, it is not a question of law. The gist of the aforesaid authorities is: (i) The suppression of facts is a question of fact; (ii) The findings recorded by the Tribunal on appreciation of evidence is a finding of fact involving no question of law; (iii) The issue of suppression of facts is a question of fact depending upon the facts and circumstances of the case. A perus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod to disclose wholly or truly all material facts required for verification of the assessment under section 71, the value of taxable service has escaped assessment or has been underassessed or service tax has been paid or has been short-paid or any sum has erroneously been refunded, or ( b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise has in consequence of information in his possession, reason to believe that the value of any taxable service assessable in any prescribed period has escaped assessment or has been under-assessed or service tax has been paid or h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed is dependant upon the omission or failure on the part of the assessee in filing the return u/s 70 of the Act is five years from the relevant date. The bonafides of the assessee or any confusion or difference in opinion as to the categorisation of the service are not at all relevant factors for the purposes of issuing notice under the aforesaid provision. The only thing that is relevant is omission to file return. In the case at hand, it is admitted on record that the respondent had not got itself registered and had failed to file return within the prescribed period of time. Thus, the period for issuing notice u/s 70 of the Act is five years on account of non-filing of the return. In view of above, the show cause notice dated 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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