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2020 (4) TMI 382 - AT - Service TaxExtended period of limitation - Non-payment of service tax - scope of the term "suppression of facts" - allegation that the Appellant had not paid service tax on receipts from taxable service provided by it at Meghnagar mines during the period 1 June, 2007 to 31 March, 2011 - whether the Department was justified in invoking the extended period of limitation of five years, because admittedly the Show Cause Notice was issued on 3 October, 2012 for the period 1 June, 2007 to 31 March, 2011? - HELD THAT:- In the present case, the Department has invoked the extended period of limitation of five years for the reason that the Appellant “by not getting themselves registered with the Department and failing to declare the receipts from taxable services rendered to MPSMC appears to have done so with intention of suppressing their value of taxable services rendered and to avoid detection by the Department that they were not paying appropriate service tax”. There is no charge in the Show Cause Notice that “suppression” by the Appellant was “wilful”, nor does the Show Cause Notice mentions that suppression was with an intent to evade payment of service tax. It is correct that Section 73 (1) of the Act does not mention that suppression of facts has to be ‘wilful’ since ‘wilful’ precedes only mis-statement. It has, therefore, to be seen whether even in the absence of the expression “wilful” before “suppression of facts” under Section 73(1) of the Act, suppression of facts have still to be wilful with an intent to evade payment of service tax - It is, therefore, clear that even when an assessee has suppressed facts, the extended period of limitation can be evoked only when ‘suppression’ is shown to be wilful with intent to evade the payment of service tax. The demand made for period within one year from the relevant date is justified but taking recourse to the extended period of limitation provided for in the proviso to Section 73 (1) of the Act is not justified - The demand made for the period within the normal period of one year is confirmed but this would have to be determined by the Commissioner afresh within a period of three months after providing an opportunity to the Appellant. The Commissioner shall also determine whether interest or penalty has to be imposed for this period - Appeal allowed by way of remand.
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