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TMI Blog2023 (6) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... otice nor in the impugned order. The show cause notice was issued only for demand of interest and penalty and there is no demand of service tax. The appellant have admittedly paid the service tax without raising any protest. It is for this reason the Revenue has not demanded the service tax under Section 73 (1) of Finance Act, 1994. Extended period of limitation - interest - HELD THAT:- As regard the issue whether the interest is recoverable and penalty was rightly imposed or otherwise, it is found that the show cause notice for recovery of interest and imposition of penalties was issued much after the normal period of limitation. It is undisputed fact that or malafide intention on the part of the appellant particularly being a trust of Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with Section 71 (1) of Finance Act, 1994 and also imposed penalty on Rs. 10,000/- under Section 77 and Penalty of Rs. 3,04,00,376/- under Section 78 of Finance Act, 1994. Being aggrieved by the said order in original the appellant filed the present appeal. 2. Shri Jigar Shah, Learned Counsel appearing on behalf of the appellant submits that the service tax itself was not payable on the leasing of the land of Kandla Port Trust for the reason that the oil companies to whom the bills were raised were having unauthorized occupation of the land as the lease contract was expired. Therefore, without contract service cannot be chargeable to tax. He further submits that the appellant have not raised the bills for lease rent, whereas it was raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se notice was issued only for demand of interest and penalty and there is no demand of service tax. The appellant have admittedly paid the service tax without raising any protest. It is for this reason the Revenue has not demanded the service tax under Section 73 (1) of Finance Act, 1994. As regard the issue whether the interest is recoverable and penalty was rightly imposed or otherwise, we find that the show cause notice for recovery of interest and imposition of penalties was issued much after the normal period of limitation. It is undisputed fact that or malafide intention on the part of the appellant particularly being a trust of Government of India. Therefore, the invocation of the extended period is not legal and proper. The show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued because if the turnover of the two items, i.e. exempted under Item 68 for the years in dispute was clubbed together with turnover of Item 14E, then it exceeded Rs. 5 lakhs and the goods became liable to duty. The Department invoked extended period of limitation of five years as according to it the duty was short levied due to suppression of the fact that if the turnover was clubbed then it exceeded Rupees Five lakhs. 3.Law about excisability of exempted goods was settled by this Court in Wallace Flour Mills Co. Ltd. v. Collector of Central Excise, Bombay, Division III - 1989 (44) E.L.T. 598 (SC) = (1989) 4 SCC 592. Till then conflicting decisions were rendered by different High Courts and Tribunal and it was not settled whether the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it 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. 5. In the result this appeal succeeds and is allowed. The matter is remitted back to the Authority for determining the turnover of the assessee in respect of only that period which is within six months from the date of issue of show cause notice. 4.1 In view of the above judgments the show cause notice being time barred the impugned order is not sustainable. As we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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