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TMI Blog2019 (4) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... owledge of department while which issuing the first show-cause notice, the second show-cause notice invoking extended period cannot sustain. The confirmation of demand or penalties or interest invoking the provisions not contained in the show-cause notice also cannot sustain - appeal allowed - decided in favor of appellant. - E/41993/2018 - FINAL ORDER NO. 40471/2019 - Dated:- 8-3-2019 - Smt. Sulekha Beevi C.S, Judicial Member For the Appellant Ms. Vishnu Priya, Adv. For the Respondent Shri L. Nandakumar, AC (AR) ORDER Brief facts are that the appellants are traders of timber wood and are registered with the department for payment of service tax under Business Auxiliary Service, Renting of Immovable Property Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 05.01.2015 to which also the appellant has furnished reply dated 08.01.2015 giving all necessary details. The present show-cause notice has been later issued for the period Apr. 11 to Mar. 14 alleging that appellant has wrongly availed input tax credit for trading activity. The show-cause notice is issued invoking the extended period alleging suppression of facts with intention to evade payment of service tax. She submitted that the department is aware of the entire credit availed by them during the conduct of earlier audit in 2012. Further, when the appellant had filed ST-3 returns pursuant to audit objections for GTA Services, the entire credit availed by the appellant for the input services impugned in the show-cause notice was als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being deemed exempted service with effect from 01.04.2011, the appellants cannot avail any input tax credit. The credit availed on various input services is therefore ineligible. Since the provisions of law is very much clear, the contention of the appellant that they have not suppressed facts with intention to evade payment of tax cannot be accepted. The findings in the order passed by the authorities below are legal and proper. 5. Heard both sides. 6. The learned counsel has argued only on the ground of limitation. It is seen from the records that an earlier show-cause notice, dated 09.10.2013 was issued for the period from Oct. 11 to Mar. 12 invoking extended period. In the show-cause notice, the demand was in respect of GTA Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 78(1). Hence, I am inclined to impose penalty under proviso to section 78(1) of the Act. Accordingly, I pass the following order. 7. From these findings, it can be seen that the appellant has disclosed entire credit availed by them. The ST-3 returns also reflect these details. Therefore, the appellants cannot be saddled with guilt of intention to evade payment of tax. Further, an earlier show-cause notice has been issued invoking the extended period which overlaps with the period involved in the present show-cause notice. The Hon ble Supreme Court in the case of M/s. Nizam Sugar Factory (supra) has held that when all relevant entries were within the knowledge of department while which issuing the first show-cause notice, the second ..... X X X X Extracts X X X X X X X X Extracts X X X X
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