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TMI Blog2019 (5) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... , suppression of facts or contravention of the Finance Act or Rules with intent to evade payment of service tax. But for this purpose show cause notice must allege and state fraud, collusion, wilful mis-representation, suppression of facts, etc. - It seems that in this matter the extended period of limitation has been invoked in a mechanical manner without adducing any proof/evidence to establish that provision of Section 73 ibid are attracted. There must be some positive act from the side of the assessee to find wilful suppression. Mere failure to pay duty or disclose a transaction or a mere misstatement is not sufficient for invocation of the extended period of limitation unless it is due to any fraud, collusion or wilful misstatement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty under Section 76 of the Finance Act, 1994 was also proposed to be imposed. The Adjudicating Authority vide Order dated 02.07.2015 confirmed the demand of service tax of Rs. ₹ 1,09,945/- and ordered it to be recovered from the appellant alongwith interest and penalty. On Appeal, the learned Commissioner upheld the decision of the Adjudicating Authority and dismissed the Appeal filed by the Appellant. 3. I have heard learned counsel for the Appellant and learned Authorised Representative for the Revenue and perused the records of the case. The dispute in the matter is short payment of Service Tax of ₹ 1,09,945/- by the appellant in respect of Transportation of Goods by Road Service in contravention of the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24. In Continental Foundation Joint Venture Holding v. CCE [(2007) 10 SCC 337] a show-cause notice under Section 11-A of the 1944 Act was issued to the assessee invoking extended period of limitation on the grounds of suppression, fraud and collusion. The Division Bench of this Court, to which one of us, Kapadia, J., was the member, held that where various circulars, instructions/directions stood issued at different points of time and where there was no clarity in the views expressed by the authorities, extended period of limitation cannot be invoked. It was held that the word suppression in Section 11-A of the 1944 Act is accompanied by the words fraud or collusion and, therefore, the word suppression should be construed str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice must allege and state fraud, collusion, wilful mis-representation, suppression of facts, etc. It seems that in this matter the extended period of limitation has been invoked in a mechanical manner without adducing any proof/evidence to establish that provision of Section 73 ibid are attracted. There must be some positive act from the side of the assessee to find wilful suppression. In my view, mere failure to pay duty or disclose a transaction or a mere misstatement is not sufficient for invocation of the extended period of limitation unless it is due to any fraud, collusion or wilful misstatement or suppression of fact or contravention of any provision. There has to be a positive, conscious, and deliberate action intended to evade ..... X X X X Extracts X X X X X X X X Extracts X X X X
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