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TMI Blog2018 (12) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... he SCN was issued on 16th January 2008 much beyond the period of one year - the appellants have not suppressed any material fact with intent to evade payment of tax. Revenue has wrongly invoked the extended period of 5 years which is only applicable in the case of fraud, collusion, wilful mis-statement, suppression of facts or contravention of provision with intent to evade payment of Service Tax whereas in the present case, there is no material to hold that there was an intention on the part of the appellant to evade the payment of Service Tax. On merits also, the appellant has a good case but since we are allowing the appeal on limitation itself, we need not go to the merits of the case - the entire demand is barred by limitation - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity after issue of SCN, confirmed the demand of ₹ 66,386/- under Section 73(2) of the Finance Act, 1994 and Appropriate ₹ 1,46,390/- which was already paid by the appellant, on 25.03.2006 out of ₹ 2,12,776/- and demanded the interest of ₹ 43,080/- and also imposed penalty of ₹ 200 per day under Section 76 of the Finance Act 1994 and equivalent penalty of ₹ 1,49,380/- under Section 78 of the Finance Act 1994 for contravention of provision of Section 67 of the Finance Act, 1994 read with Rule 6(3) of the Service Tax Rules, 1994. Aggrieved by the said order, the appellant filed appeal before the Commissioner (A) and the Commissioner (A) has upheld the order of the Deputy Commissioner on the ground that the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o evade the payment of Service Tax. In support of his submission, he relied upon the decision in the case of Infinity Infotech Parks Ltd. Vs. UOI reported in 2013 (31) STR 653 (Cal.) wherein the Hon ble High Court of Calcutta held that just because the issue was identified during the audit, the Revenue is not correct in concluding that the extended period of limitation for issuance of SCN is applicable and valid. He further submitted that it is a settled position of law that no mala fide intentions can be attributable to the PSUs and the Government bodies and in the appellant s own case reported in KSTDC Vs. CST, Bangalore 2011 (21) STR 518 (Tri. Bang.) wherein the Tribunal has held as under: We find that once adjudicating auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered themselves and have paid the tax. The material on record do not disclose a case of fraud, collusion, wilful mis-statement or suppression of facts or contravention of any of the provisions of the Act or the Rules made therein with intention to evade payment of tax. It discloses that the assessee having bona fide believed that the services provided by them do not attract Service Tax, they did not get themselves registered. The department also did not levy tax. The moment it was brought to their notice that the services rendered by them comes under the Act they promptly registered themselves and paid tax. Therefore, it is clear the case falls under sub-section (1) of Section 73 and not under the proviso of the said Section. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in providing various taxable services and after the audit, the appellant themselves computed the tax liability and paid the Service Tax of ₹ 1,46,390/- on 25th March 2006 whereas the SCN was issued on 16th January 2008 much beyond the period of one year. Further, we find that the appellants have not suppressed any material fact with intent to evade payment of tax. Further, we find that the Revenue has wrongly invoked the extended period of 5 years which is only applicable in the case of fraud, collusion, wilful mis-statement, suppression of facts or contravention of provision with intent to evade payment of Service Tax whereas in the present case, we do not find any material to hold that there was an intention on the part of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t address the issues, which were required to be addressed, for issuing a notice by invoking the extended period of limitation. Moreover, whether Service Tax is payable on premium for a long term lease is a question of law. The petitioners have an arguable case . 6.1 Similarly, we find that the grounds on which the extended period of limitation can be invoked have not been specifically pleaded by the Revenue in the SCN. Further, we find that on merits also, the appellant has a good case but since we are allowing the appeal on limitation itself, we need not go to the merits of the case. By following the ratios of the decisions cited supra, we are of the considered view that the impugned order is not sustainable in law therefore we set a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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