TMI Blog2019 (3) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... t mere non-filing of returns or not taking registration would not amount to suppression of facts with intent to payment of service tax - Further in a slew of decisions, various Courts have held that the department has to establish some positive act of suppression or mis-statement in order to invoke the extended period. Thus, there are no ingredients in the present case for invocation of extended period - SCN is time barred - appeal allowed - decided in favor of appellant. - Appeal No. ST/325/2011 - Final Order No. 40411/2019 - Dated:- 8-3-2019 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Ms. S. Sridevi, Advocate for the Appellant Shri B. Balamurugan, AC (AR) for the Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts were liable to pay service tax of ₹ 1,71,039/- after abatement of 75% under GTA service. The short payment of service tax came to light only after the visit of the audit party. Show cause notice was issued invoking the extended period proposing to demand service tax along with interest and also for imposing penalties. After due process of law, the original authority confirmed the demand of ₹ 13,51,624/- under Maintenance and Repair Services and ₹ 69,621/-under GTA service along with interest and imposed penalties. In appeal, Commissioner (Appeals) upheld the same. Hence this appeal. 2. On behalf of the appellant, ld. counsel Ms. S. Sridevi appeared and argued the matter. She submitted that the appellant has been pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of the assessee holding that there was no malafide on the part of the assessee. That they had availed the exemption as per the notification on bonafide belief. In view of such findings, the entire demand is time-barred. She took assistance of the decision rendered in the case of Continental Foundation Joint Venture Vs. Commissioner of Central Excise, Chandigarh 2007 (216) ELT 177 (SC) to contend that the Apex Court has held that when there is scope of doubt in the mind of an assessee on a particular issue, the longer period cannot be invoked. In the case of Principal Commissioner of Central Excise Vs. C. Kamalakannan 2018 (8) GSTL 589 (Mad.), the Hon'ble High Court of Madras held that extended period cannot be invoked mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he material period, I held that they had not deliberately evaded payment of tax and found that there was no malafide on the part of the assessee. Ii find that the assessee s claim that they were on the bonafidely entitled to exemption to the services rendered for the contracts entered prior to 16.6.2005. 5.1 Thus, it is seen that there is a finding by the adjudicating authority that appellants did not deliberately evade payment of tax and there was no malafide on the part of the appellant. However, in the subsequent paragraphs, he has confirmed the demand holding that the proviso to sub-section (1) of Section 73 is rightly invocable for demanding service tax. When there is a finding arrived by the adjudicating authority that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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