2019 (5) TMI 1458 - AT - Service Tax

Extended period of limitation - Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded - suppression of fats or not - whether the extended period of limitation for issuance of a show cause notice under the proviso to Section 73(1) of the Finance Act, 1994 could have been invoked in the facts and circumstances of the case?

HELD THAT:- In the present case it needs to be noted that notice merely mentions that the extended period of five years was being invoked as the assessee suppressed the facts from the department. The show cause notice does not allege that the suppression was with an intention to evade payment of Service Tax. It was, therefore, pleaded by the Appellant in reply to the show cause notice that the extended period of limitation could not be invoked. This plea is also mentioned in paragraph 10 of the impugned order - This has, however, not been considered by the Adjudicating Authority in the impugned Order.

The Commissioner completely failed to appreciate that the extended period of five years could have been invoked only when the appellant suppressed facts with an intent to evade payment of Service Tax. All that has been observed by the Commissioner is that Cenvat Credit in respect of Goods and Transport Services was wrongly taken by the Appellant. This would not be sufficient to attract the extended period of limitation.

The benefit of the proviso to Section 73(1) could be taken only when there was an explicit averment in the show cause notice that there was suppression of facts with an intent to evade payment of duty. In the absence of such an averment, the extended period of limitation could not have been invoked.

Appeal allowed - decided in favor of appellant.