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TMI Blog2018 (9) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... law on the subject as to whether the extended period of limitation could have been invoked when there were two views within the Department itself i.e. when certain Original Authorities hold that the services are taxable services and certain Appellate Authorities hold otherwise - When there is scope for doubt in the mind of the assessee on a particular issue, the longer period under the Proviso to Section 11A of the Central Excise Act, 1944 cannot be invoked. Extended period cannot be invoked - Appeal dismissed - decided against Revenue. - Civil Miscellaneous Appeal No.35 of 2018 and CMP.No.441 of 2018 - - - Dated:- 23-8-2018 - T. S. Sivagnanam And V. Bhavani Subbaroyan, JJ. For the Appellant : Mr.T.L.Thirumalaisamy, SPC For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d bills on the sale of products to their distributors by raising sale invoices and charges and value added tax on them. However, the distributors did not raise any separate sale document in respect of subsequent sales made by them and did not charge sales tax/VAT on such sales and thus, they acted as a commission agent on behalf of the principal by promoting their products. 5. On scrutiny of the records furnished by the assessee, the Original Authority stated that the assessee is not registered with the Department till 17.7.2012 whereas he received commission charges for the services provided under the category 'business auxiliary service' from 2007-08 to 2011-12. However, the assessee did not disclose the actual amount received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department and the Department had any clue that the appellant was providing taxable service and before issuance of the said show cause notice and that therefore, they were covered under Section 73(3) of the Finance Act, 1994. Apart from the above contention, the assessee also advanced other contention on facts and relied upon certain judicial precedents. 9. The Tribunal, vide final order dated 18.5.2017, disposed of the appeal in favour of the assessee by setting aside the order passed by the Adjudicating Authority as well as the First Appellate Authority and held that the demand beyond the period of limitation would not be sustainable. Hence, the Revenue is on appeal before us as against order of the Tribunal. 10. We have heard Mr.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11A of the Act accompanied by very strong words as 'fraud' or collusion and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11-A the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equated with a wilful misstatement. The latter implies making of an incorrect statement with the kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession or mis-statement of fact, which is not wilful and yet constitute a permissible ground for the purpose of the Proviso to Section 11A. Mis-statement of fact must be wilful. 13. That being so, the adjudicating authorities were not justified in raising the demand and CEGAT was not justified in dismissing the appeals. 14. On the ground of adjudication beyond the normal period of limitation and non-availability of the extended period of limitation, the appeals are allowed. 14. In the instant case, there was no allegation of fraud or suppression or wilful mis-statement against the assessee. The Department, even in the said show cause notice, stated that the assessee was liable to pay service tax and get himself registered f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of the Rules made thereunder with intent to evade payment of tax. On considering the rival submissions on this point, we are of the view merely because the assessees did not apply for service tax registration or did not file ST-3 returns or did not declare their activities to the jurisdictional Central Excise Authorities, it cannot be inferred that this was a wilful act with intent to evade payment of service tax. We also take notice of the fact that in respect of appeals filed by the Revenue, the Commissioner (Appeals), after analysing the activities of the assessees, had taken the view that the same is not covered by the definition of 'business auxiliary service' under Section 65(105)(zzb) read with Section 65(19) of the Financ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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