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TMI Blog2022 (12) TMI 1143X X X X Extracts X X X X X X X X Extracts X X X X ..... Whether the demand should not have been confirmed as the Show Cause Notice was issued beyond the normal period of limitation? - HELD THAT:- It is observed that department can issue a show cause notice beyond the prescribed period of one year from the period under question only in accordance of the proviso to Section 73 of the Finance Act, 1994 - here there is suppression of any fact for the reason of fraud or collusion or any willful misstatement with an intent to evade duty, the department is entitled to invoke the extended period. No doubt mere non-disclosure of fact will not be such suppression as may entitle the department to invoke this provision except where there is an intent to evade the duty. From the above observed admission of the appellant, it is clear that appellant was not paying the service tax to the department despite providing the taxable service. It is also nowhere denied that even the service tax registration was not obtained. It is also observed that the present show cause notice was issued based upon the information received from the Income Tax Department. It becomes clear that the amount received by the appellant during the period under challenge was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that any amount received as a commission will be an amount as against providing service as that of Business Auxiliary Service , whereupon service tax payment is the liability of the service tax provider. Learned Counsel, however, has challenged the confirmation of demand on the ground that there has been no reason for invoking the extended period of limitation. Mere failure to supply the information is wrongly considered as a ground of such suppression which entitles the department to issue notice even beyond the normal period of one year. It is mentioned that the show cause notice in the present case has raised a demand for the period from 2014 to 2017 but was issued in the year 2020. The demand as confirmed is therefore liable to be set aside on the ground of limitation itself. Order accordingly prayed to be dismissed and appeal is prayed to be allowed. 5. Per contra learned DR has laid emphasis upon the findings in Para 7.3 of the order under challenge wherein the Commissioner (Appeals) has discussed the issue of invocation of extended period. The act of the appellant for never disclosing the department about providing the taxable service has rightly been considered as suppr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact will not be such suppression as may entitle the department to invoke this provision except where there is an intent to evade the duty. From the above observed admission of the appellant, it is clear that appellant was not paying the service tax to the department despite providing the taxable service. It is also nowhere denied that even the service tax registration was not obtained. I also observe that no reply to the show cause notice was served till a letter dated 12.07.2021 was sent to the original adjudicating authority. However, the perusal thereof shows that the appellants have specifically conveyed about unawareness for their liability of service tax towards the amount being collected by them on commission basis. It is for that reason that the registration under service tax law was also not obtained. Even invoices were not issued to the recipients. The amount received was shown in Income Tax Returns. These facts are sufficient to hold that appellants were under bona fide belief that the amount of commission received by them is their income instead of it being their service tax liability. They have thus not charged any service tax, as admittedly was not mentioned as serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression. 11. I also draw my support from the decision of the Hon ble Supreme Court in the case of Cosmic Dye Chemical Vs. Collector of Central Excise, Bombay reported as 1995 (75) E.L.T. 721 (S.C). It reads as follows: 6. Now so far as fraud and collusion are concerned, it is evident that the requisite intent, i.e., intent to evade duty is built into these very words. So far as mis-statement or suppression of facts are concerned, they are clearly qualified by the word wilful preceding the words mis-statement or suppression of facts which means with intent to evade duty. The next set of words contravention of any of the provisions of this Act or rules are again qualified by the immediately following words with intent to evade payment of duty . It is, therefore, not correct to say that there can be a suppression or mis-statement of fact, which is not wilful and yet constitutes a permissible ground for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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