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TMI Blog2019 (5) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... on on the part of the appellant. In the present case since suppression could not be established therefore, I agree with the views expressed by learned Member (Judicial) that the demand was barred by limitation - since the demand does not sustain for extended period, therefore, the invocation of penal provisions is not justified. The majority decision is that the demand raised by way of invoking the extended period of limitation is required to be held as time barred by limitation. A small part of demand falling under normal period may be requantified and recovered by Assistant Commissioner alongwith applicable interest - Penalty is set aside. Appeal allowed in appellant. - APPEAL No. ST/55651/2014-CU[DB] - FINAL ORDER NO.70314/2019 - Dated:- 19-2-2019 - Mr. Anil G. Shakkarwar, Member (Technical), Smt. Archana Wadhwa, Member (Judicial) And Mr V. PADMANABHAN, MEMBER (TECHNICAL) (THIRD MEMBER) For The Appellant : Shri Rajesh Chhibber, Advocate For The Respondent : Shri Mohammad Altaf, Assistant Commissioner (AR), ORDER Per : Mr V. PADMANABHAN, MEMBER (TECHNICAL) The present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on time-bar. 4. Learned A.R. for revenue had draw our attention to the finding of learned Commissioner (Appeals) and stated that learned Commissioner (Appeals) has examined the agreement between M/s (n) Code Solutions and the appellant wherein the appellant has been described as LRA (Local Registering Authority) and as per agreement, appellants responsibility was to perform verification of genuineness of the person requesting and applying to obtain digital signature certificates and to approve or reject application based on the result of the verification process and collect request for revocation of Digital Signature Certificate and that appellant was required to carry the functions as per procedures as laid out in LRA Manual and in accordance with Certificate Practice Statement provided by M/s (n) Code Solutions and therefore the transaction was not sale and purchase. 5. Having considered the rival contentions and on perusal of record, we find that the learned Commissioner (Appeals) in his impugned order has held that as per the said agreement the responsibility of appellant was as submitted by learned A.R. recorded hereinabove. Therefore, we do n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he larger period thus the demand is time barred. We submit that we had correctly self assessed the value of provided service and correctly deposited the due Service Tax with the department. In case of impugned work, we submit that we had purchased the digital signature certificate and E. Token from M/s [n] Code Solutions and sold the same to different buyers. Thus the said work not comes under the ambit of Service Tax. Since no service is being provided to M/s [n] Code Solutions accordingly the question to evade the service tax does not arise. Further the Auditors has noted all the material from our maintained records and statutory kept documents then the allegation that we had willfully suppressed the facts and not follow the applicable law intentionally with object to evade the applicable service tax is not fair. Thus we submit that there is no legal reason behind invocation of larger period. That there is no legal positive reason supporting the allegation with evidence that what our bona-fide act, shall be treated as willfully suppressed with an intention to evade the service tax liability. Fact is this nothing was suppressed and propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f limitation under proviso to Section 73 (1) have rightly been invoked in the instant case. 4. As is seen from above, the appellant authority has not refereed to the fact that all the business transactions between the appellants and M/s (n) Code Solutions were duly reflected by them in their statutory records maintained in the ordinary course of their business, neither any reference stand made by him to any positive evidence on record to reflect upon appellant‟s mala fide. 5. I have also seen the order passed by the Additional Commissioner, while dealing with the appellant‟s plea of limitation, he has observed as under;- I also observe that the pray with an intention to evade payment of Service Tax has deliberately not disclosed regarding rendering of these services. They have suppressed the value of taxable services provided by them by not filling the proper and correct statutory returns as per law with an intention to evade payment of Service tax. Accordingly, the extended period of limitation as envisaged under the proviso to Section 73 (1) of the Finance Act, 1994 has been correctly invoked in this case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t such services were not taxable. On the other hand Revenue has not advanced any positive evidence to show that they intended to evade the tax. Merely non-filing of ST 3 Returns and non-payment of Service Tax by itself cannot lead to the inevitable conclusion that the tax was not being paid with a mala fide intention, unless there is a positive evidence to that effect. Otherwise in all such cases of non-payment of service tax and non-filing of ST 3 Returns, the extended period of limitation would get invocable thus making limitation provision as otiose and infructuous. As per the settled principle of legal interpretation, an interpretation which leads to making any legal provisions as infructuous, has to be avoided. 9. In view of the forgoing, demand raised by way of invoking the extended period of limitation is required to be held has barred by limitation. However, a small part of the demand may fall within the limitation period for which the Assistant Commissioner would re-quantify the demand. 10. As I have already observed that there was no mala fide on the part of the appellant the invocation of Penal provisions against him are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 12.09.2018, learned Member (Judicial) held that demand is to be held as time barred and penalty has to be set aside. 2. In the above background the following two points of difference have been referred to me by the Hon‟ble President for decision:- (i) Whether the time bar issue has to be left open, as held by Learned Member Technical. Or (ii) Whether the demand has to be held as time barred and the penalty has to be set aside, as observed by Member Judicial. 3. In this connection, heard Shri Rajesh Chibber, learned advocate on behalf of the appellant as well as Shri Gyanendra Kumar Tripathi, learned D.R. representing Revenue. 4. Both sides agreed in their concurrent submissions that the issue of time bar raised in the ground of appeal cannot be left open and is to be decided by the Tribunal. After careful consideration of the issue, I am of the view that the time bar issue, which is one of the grounds agitated by the appellant, cannot be left open but is required to be decided and a finding rendered by the Tribunal. 5. The second issue referred is whether the dem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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