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TMI Blog2023 (1) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation as per section 73. Neither does the fact that the audit was conducted prove that the appellant suppressed, let alone willfully suppressed taxable services. On this ground itself, the demand invoking the extended period of limitation needs to be set aside. As may be seen, if the assessee fails to furnish the returns or having made a return fails to assess the tax in accordance with the provisions of law, the Central Excise officer may require the assessee to produce such accounts, documents or other evidence as he may deem necessary and determine the same payable by the assessee or refundable to the assessee on the basis of such assessments. This is the responsibility of the Jurisdictional Superintendent of Central Excise with whom the return is filed. In this case, the entire basis on which the audit raised the objection was in the books of accounts and documents of the appellant - If the audit detected escapement of service tax, it does not establish, in the factual matrix of this case, that the assessee has indulged in fraud or collusion or wilful mis-statement or suppression of facts or violation of legal praising with an intent to evade payment of service tax. It on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , confirmed the demand along with interest, as proposed in the show cause notice and imposed penalties. This order was upheld by the Commissioner (Appeals) by the impugned order. 5. Learned Counsel for the appellant submitted as follows :- (a) The entire demand in the show cause notice is hit by limitation as the demand has been issued after the expiry of one year and, hence, needs to be set aside. She submits that merely because during audit the alleged non- payment of service tax was discovered does not prove that there was any suppression on the part of the appellant, let alone suppression with intent to evade. All figures were duly reflected in their balance sheets which were examined by the audit party. She places reliance on the following case laws :- (i) Commissioner of Central Excise, Hyderabad versus Chemphar Drugs and Liniments [1989 (40) E.L.T. 276 (S.C.)] (ii) Padmini Products versus Collector of Central Excise [1989 (43) E.L.T. 195] (iii) PVT Ltd. versus Commissioner of Service Tax, New Delhi [2021 GSTL 435 (Del. )] (b) The services of a consignment agent do not fall under the category of Clearing and Forwarding Agent service u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g him to show cause why he should not pay the amount specified in the notice : Provided that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of (a) fraud ; or (b) collusion; or (c) wilful mis-statement ; or (d) suppression of facts ; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, by the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as if, for the words one year , the words five years had been substituted . 9. As may be seen, the demand could only be raised within a period of one year from the date unless the short payment of service tax was by reasons of (a) fraud or (b) collusion or (c) wilful mis-statement or (d) suppression of facts or (e) contravention of any of the provisions of Chapter V of the Finance Act or the rules made thereunder with intent to evade payment of service tax. 10. The reasons for invoking extended period of limitation in the show cause notice are in paragraph 8, which reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-in-appeal have established any of the five elements required under section 73 to invoke extended period of limitation. The only reason for invoking extended period of limitation was that had the audit not being conducted escapement of service tax would not have to come to notice . Therefore, it was concluded that the appellant had willfully suppressed value of taxable services. Firstly, we find that detection of any escapement of service tax during audit is not a ground on which extended period of limitation as per section 73. Neither does the fact that the audit was conducted prove that the appellant suppressed, let alone willfully suppressed taxable services. On this ground itself, the demand invoking the extended period of limitation needs to be set aside. 14. Secondly, it is wrong to say that had the audit not being conducted the escapement of service tax would not have come to notice. Section 69 of the Finance Act, 1994 requires every person who is liable to pay service tax to obtain registration which the appellant did. Section 70 requires every such person to self-assess the service tax due and to furnish returns to the Superintendent of Central Excise which the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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