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2019 (1) TMI 569 - HC - Service TaxCommercial concern or not - demand of service tax - extended period of limitation - Held that:- No Substantial Question of Law arises for consideration in the instant case - The reliance placed on the larger Bench decision of the CESTAT in the case of Great Lakes Institute of Management Ltd. V. Commissioner of S.T., Chennai [2013 (10) TMI 433 - CESTAT NEW DELHI - LB] is wholly inapplicable to the facts and circumstances of this case. Invocation of proviso to Section 73(1) of Finance Act - Held that:- Sub-section (1) of Section 73 states that where any service tax has not been levied or paid or has been shortlevied or short-paid or erroneously refunded, the Central Excise Officer within one year from the relevant date, serve notice on the person chargeable with service tax. The period stipulated under Section 73(1) viz., "one year" was substituted by eighteen months by Finance Act, 2012 dated 28.05.2012. The period in dispute in the instant case falls prior to the amendment. Therefore, if the Department was of the view that service tax has not been levied or paid by the respondent, they could have invoked Section 73(1) within one year from the relevant date - Admittedly, this was not done and the Department seeks to invoke proviso to Section 73(1) of the Act. The proviso provides for an extended period, whereby, the word one year in Section 73(1) was substituted by the word "five years". The proviso will come into play only if the service tax has not been paid by the respondent by reason of fraud; or collusion; or willful mis-statement; or suppression of facts; or contravention of any of the provisions of Chapter 5 of the Finance Act or of the Rules made thereunder with intent to evade payment of service tax. Admittedly, there is no such allegation of fraud or collusion etc., which is not the only requirement, but there should be intention to evade payment of tax. Thus, mere non-payment will not be a ground to invoke proviso to Section 73(1) of the Act. That apart, the assessee had an explanation that they had produced Government records, approval from AICTE, Project Director of the Canada-India Institutional Cooperation Project, who had also given a statement clearly stating that they are Government aided Institution and Government directed such courses to be conducted - proviso to Section 73(1) of the Finance Act could not have been invoked, as there was no material against the respondent for invoking the extended period. The Substantial Questions of Law are answered against the Revenue - appeal dismissed.
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