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TMI Blog2024 (5) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... t or suppression etc. has not been proved by the department. It is found that invoking the extended time proviso under section 73(1) of the Finance Act, 1994 is legally not sustainable. The demand of service tax has been made from April 2007 to March 2012, while the show cause notice has been issued on 1st December, 2015 and therefore it is clear that entire period of the demand is barred by period of limitation and period from April 2007 to January 2010 is even beyond the intended time limit of five years. At the same time the department has not been able to adduce any evidence which can support the extended time proviso for demanding service tax. This Tribunal in case of INTERCONTINENTAL POLYMER PVT LTD VERSUS C.C.E. S.T. -DAMAN [ 2023 (6) TMI 453 - CESTAT AHMEDABAD] held that ' in the peculiar facts as noted above there is no suppression of fact or mala-fide intention on part of the appellant, therefore, the invocation of extended period is illegal and incorrect.'. The demand for the period April 2007 to March 2012 raised by the show cause notice dated December 1, 2015 is clearly barred by period of limitation and therefore without going into merit of the matter, it is h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and Tapi districts. The learned Chartered Accountant has on the first hand has objected to the fact that the impugned show cause notice has been issued invoking extended time proviso under section 73 of the Finance Act, 1994, which can be invoked only in case where the service tax assessee failed to pay service tax for the reason of fraud, collision, willful mis-statement, suppression of facts or in violation of provisions of Finance Act and of the rules within an intend to evade service tax. The learned Chartered Accountant has submitted that the appellant has regularly been filing their ST-3 returns for the activities on which service tax is leviable and therefore, it was wrong on the part of the adjudicating authority to confirm the demand by invoking the extended time proviso under section 73(1) of the Finance Act, 1994. Its settled legal principal that that suppression does not mean mere omission but a positive act of suppressing vital information with an intend to evade service tax. It has further been stressed that its matter of record that department was fully aware about the activities of the appellant and had also issued a show cause notice on earlier occasions after co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icense, than on receipt of refundable deposit, we gave them the permission to start the SUMUL Milk Sale Parlor. Therefore, as alleged by AO, this is not an activity performed by the appellant for the customer in lieu of consideration. In support of my above contention, I am attaching herewith the 1 application form received from a person namely, Rajeshbhai M Parmar (copy of such form is already provided to revenue during the audit and also during the adjudication procedure) [Copy attached at Page Nos. 50 to 51 of Paper Book-1]. (ii) Share Application Fee Income (Nominal) Share Application Fee Income (Society): As per the normal parlance and contexts of the structure of the co- operative society it is nothing but an association of persons. Where number of persons come to gather to accomplish the common goals and objectives. All though as a co-operative society is formed by contribution of all the members, it operates separately from its members. The persons who desire to be the member of the society is to fill the Nominal Member Application Form specifying the required information of member. For such application forms fees are charged at nominal amount of Rs. 100/-. Therefore, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and give the medicine treatment to animals of farmers/pashupalaks who are daily supplying milk to PACS and those PACS, which are member of our society, as against that visit by a doctor to the particular place of the farmers/pashupalaks, we are charging nominal visit fees from the member of our society on reimbursement and revenue sharing basis. As you are also aware about our prime objective of keeping the milch animal healthy so that we can procure the clean milk and serve the society in better way. Our main business is to sale milk and milk products and not of providing medical facility to the animal of the members. Further, the exemption has been given at sr. no: 4 for veterinary clinic in relation to health care of animals or bird in Mega Exemption Notification No: 25/2012-ST. Therefore, the contention of AO of treating such visit fees as a provision of service is not as per law. In support of my above contention, I am attaching herewith the case paper of special visit as also route vise-visit sheet (copies of such case paper of special visit as also route vise-visit sheet are already provided to revenue during the audit and also during the adjudication procedure) [Copies att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d has erroneously been made, requiring 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 [eighteen], the words five years had been substituted. Explanation: Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of [thirty months] or five years, as the case may be. 4.3 It can be seen that the provisions of section 73(1) provides that if the service tax has not been levied or paid or has been short paid or short levied for the reason of fraud, collusion or willful mis-statement or suppression of facts or contravention of any of the provision of this chapter or the rules with an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption notification which was in the knowledge of the Revenue, the suppression of fact or mala-fide on the part of the appellant cannot be attributed. The issue involved is clearly an interpretational issue of exemption notification and the interpretation made by the Revenue could have been made from the claim of notification as declared in their ER-1 return. It is also fact on record that the appellant have cleared the goods by filing bills of entry and the fact that the goods imported is not classified under 3915 was well informed to the Department. Therefore, in the peculiar facts as noted above there is no suppression of fact or mala-fide intention on part of the appellant, therefore, the invocation of extended period is illegal and incorrect. Accordingly, the demand for the longer period is not sustainable on the ground of time-bar also. The demand is set aside on merit as well as on limitation. 5. As per our above discussion and finding, the impugned order is set aside and the appeal allowed with consequential relief, if any, as per law. (Pronounced in the open court on 7-6-2023) Similarly, in the case of M/s. GD Goenka Pvt Ltd Vs. Commissioner of Central Excise and Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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