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2023 (8) TMI 853 - CESTAT AHMEDABADWrongful payment of Service Tax - Business Auxiliary Services - Transportation of goods by Rail Services - demand has been confirmed by the Ld. Commissioner only on the ground of Rule 5 of the Service tax Determination of Value Rules, 2006 - benefit of N/N. 1/ 2006 –ST - Extended period of limitation - HELD THAT:- The issue involved in this case is regarding the demand of service tax for the period April 2008 to March 2011 on the ground that the appellant has availed in-eligible benefit of notification No. 1/2006-ST dated 01.03.2006 by discharging the service tax liability by availing Cenvat Credit and paid service tax after availing abatement of 70% of the gross amount - it is found from the records and copy of ST-3 produced, that appellant had been filing the ST-3 returns regularly to the Jurisdictional Range officers. It is on record that the appellant shown all the details in ST-3 returns. It becomes clear from the ST-3 return that the fact that appellant were discharging Service tax on Transport of Goods in container by Rail service and availing Cenvat credit and utilized the Cenvat credit was in the knowledge of the Revenue. However show cause notice to the Appellant was issued on 26.02.2013. Inasmuch as the entire information was in the knowledge of the Revenue, the longer period of limitation is not available - the show cause notice should have been issued within the normal period of one year as prescribed under Section 73(1), whereas the show cause notice for the period April 2008 to March 2009 was issued on 26.02.2013 i.e. after prescribed limit of one year. As per the fact, there is no suppression of fact on the part of the appellant. It is admitted fact that the appellant have taken service tax registration and are filing the periodical returns regularly. The appellant have maintained proper books of accounts in the normal course of business. It is pertinent to note that the entire case of the department on merit is that since appellant have availed Cenvat Credit, they violated the condition of abatement notification No. 01/2006-ST - availment of Cenvat Credit and payment of Service Tax on the abated value were declared in the ST-3 return. Hence, having all the facts were disclosed to the department, nothing prevented department from issue of show cause notice within normal period of one year. Therefore, the demand raised in the show cause notice is clearly time-barred. The impugned order is set aside - appeal allowed.
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