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2024 (5) TMI 196 - CESTAT AHMEDABADInvocation of extended period of limitation - activities of the appellant have been entered in their books of accounts and they have been filing their ST-3 returns regularly - Failure to discharge the service tax liability correctly - income earned for the services such as customer fee income, share application fee income, share application fee income for society, tender form fee income, transfer fee income, visit fee income etc. HELD THAT:- 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 intend to evade payment of service tax the show cause can be issued within a period of five years - Since, the allegations of fraud, collusion or willful mis-statement 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 held that the impugned show cause notice is barred by period of limitation - the impugned order is set aside - appeal allowed.
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