2008 (9) TMI 128

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..... no malafide intention to suppress facts – extended period not invokable
Dr. S.L. Peeran, Member (Judicial) and Shri T.K. Jayaraman, Member (Technical) (Final Order Nos. 1074-1075/2008 dt. 12.9.2008 certified on 1.10.2008 in Appeal Nos. ST/286 & 289/2006) Shri M.S. Nagaraja, Adv. for Party. Smt. Sudha Koka, SDR for Department. [Order per Dr. S.L. Peeran Member (Judicial)] - Both these appeals arise from Order-in-Appeal No. 224/2006-CE dated 19.7.2006. The revenue is aggrieved with the portion of the order granting the benefit of time bar and for having remanded the matter on a portion of the demands for grant of the benefit of time bar. The assessee is aggrieved with the denial of the benefit of deduction of wharfage charges paid to .....

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..... invoices and other records, therefore, the larger period cannot be invoked. At the same time, he has noted that once self assessment procedure was adopted the liability of calculating and discharging duty is of the assessee alone and no knowledge on the part of the department can be presumed. For this period, the charge of concealment resulting in short payment of duty becomes sustainable. The Revenue is aggrieved with portion of the order wherein the Commissioner (A) has noted that the larger period cannot be invoked for extended period claiming concealment with mala fide intention. 3. The appellant's plea on merit is that the wharfage charges are clearly deductible in terms of the Board's Circular itself and the Commissioner (A) cannot .....

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..... ed that in such cases, the value of the taxable service shall be 15% of the lump sum amount charged to the client. The Custom House Agents are required to show the service charges as 15% of such lump sum amount of the bills and Service Tax of 5% will be chargeable on the above 15%." 3.1 The learned counsel submitted that once the ST-3 returns have been finalized, it follows that department is in full knowledge of the facts and Commissioner (A) cannot take a view that for the part of the amount, larger period is sustainable. In this regard, he also relied on large number of judgments. 4. The learned SDR defended the order and submitted that the finding given by the Commissioner (A) is based on Para 2.5 of the said CBEC Circular which is al .....

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