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TMI Blog2024 (12) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... h intent to evade payment of service tax, by the person chargeable with the service tax, the provisions of the said section shall have effect as if, for the word one year , the word five years has been substituted - There can be a difference of opinion between the department and an assessee. An assessee may genuinely believe that duty is not leviable, while the department may believe that duty is leviable. The assessee may, therefore, not pay duty in the self-assessment carried out by the assessee, but this would not mean that the assessee has wilfully suppressed facts. To invoke the extended period of limitation, atleast one of the five necessary elements must be established and their existence cannot be presumed merely because the assessee is operating under self assessment. In the present case, even though the show cause notice was issued to the appellant after the expiry of one year from the relevant date, the proviso to section 73(1) of the Finance Act has not been invoked. Though the appellant specifically denied that any facts had been suppressed, neither the Joint Commissioner or the Commissioner (Appeals) have dealt with this issue. It cannot be alleged by the department t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyond the period stipulated in the proviso to section 73(1) of the Finance Act 1994 [the Finance Act], as it stood at the relevant time. It has been pointed out that the appellant was earlier issued show cause notice dated 12/13.03.2013 for the period 2008-09 to 2011-12 and show cause notice dated 26.03.2013 for the period 2007-08 demanding service tax under the same head. Thus, the show cause notice for the period from April 2012 to March 2013 should have been issued within the stipulated time as facts were in the knowledge of the department but the show cause notice was issued on 22.10.2014. In support of this contention, learned counsel placed reliance upon certain judgments to which reference shall be made at the appropriate stage. 4. To examine the contention raised by learned counsel for the appellant in connection with the invocation of the extended period of limitation contemplated under the proviso to section 73(1) of the Finance Act, it is pertinent to state that the show cause notice dated 12/13.03.2013 does not state any reason for invoking the extended period of limitation. The relevant portions of the paragraph 8 of the show cause notice are reproduced below: 8(1) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund 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 one year , the words five years had been substituted. 8. It would be seen from a perusal of sub-section (1) of section 73 of the Finance Act that where any service tax has not been levied or paid, the Central Excise Officer may, within one year from the relevant date, serve a notice on the person chargeable with the service tax which has not been levied or paid, requiring him to show cause w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see to evade payment of duty. 12. In the present case, as noticed above, even though the show cause notice was issued to the appellant after the expiry of one year from the relevant date, the proviso to section 73(1) of the Finance Act has not been invoked. Though the appellant specifically denied that any facts had been suppressed, neither the Joint Commissioner or the Commissioner (Appeals) have dealt with this issue. 13. It cannot be alleged by the department that facts were not in the knowledge of the department since two show cause notices dated 12/13.03.2013 and 26.03.2013 had been issued to the appellant. There is, therefore, no reason as to why the show cause notice should have been issued on 22.10.2014 beyond the normal period of limitation for the period from April 2012 to March 2013. It is, therefore, clearly a case where the facts were in the knowledge of the department and the department cannot allege that facts had been suppressed. This apart, service tax has been demanded on the basis of profit and loss account and balance sheet, which are public documents which the department could have ascertained. In this connection, reference can be made to the decision of the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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