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2019 (10) TMI 1109 - CESTAT KOLKATABelated registration - security services - new levy of service tax on the said service during relevant period - intent to evade/suppression of facts or not - extended period of limitation - HELD THAT:- The very levy of service tax on security service was a new subject in the year 1998. The said service was made taxable only w.e.f. 16.10.1998 i.e. the very date from which the impugned demand has been made. The submission of the appellant that the error in filing of ST-3 returns is based upon a certain understanding of the appellant and hence the same should not be the only basis of alleging suppression of facts, more so, when the same was communicated and made known to the Department, is reasonable and not devoid of merit - we are unable to agree with the contention of the Revenue that in absence of disclosure in returns regarding the total billings, the assessee has willfully suppressed, particularly in view of the fact that the assessee has duly communicated to the Department about their understanding regarding the tax liability. The Addl. Commissioner’s letter dated 24.08.2012, issued after more than 2 years of the issue of impugned order dated 16.03.2010, is a communication from an Officer below the rank of Commissioner cannot be entertained at this stage, since not disowned by the Ld. Commissioner himself. In any case, the very fact that the Ld. Commissioner on being satisfied that tax amount could not be recovered by appellants from its clients, he reduced the tax demand. Further, the very applicability of tax on security service being a new subject, the conduct of assessee could not be doubted - the Department cannot allege suppression on the part of the assessee to justify invocation of extended period of limitation. In view of the statutory legal provisions as applicable during the period from 16.10.1998 to 31.03.2004 involved in this case and the discussions made, we are of the view that the impugned Show Cause Notice dated 17.01.2005 could not be legally issued and therefore, the demand of service tax, interest and penalty cannot sustain - appeal allowed - decided in favor of appellant.
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