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2021 (8) TMI 642 - AT - Service TaxInvocation of extended period of limitation - wilful suppression of facts with an intent to evade payment of service tax, exists or not - necessary ingredients for issuance of SCN, present or not - section 73(1) of the Finance Act, 1994 - HELD THAT:- Tribunal in M/S. SHIV-VANI OIL & GAS EXPLORATION SERVICES LTD. VERSUS CST, NEW DELHI [2016 (10) TMI 878 - CESTAT NEW DELHI], wherein the Tribunal after making reference to the decision of the Supreme Court in COSMIC DYE CHEMICAL VERSUS COLLECTOR OF CENTRAL EXCISE, BOMBAY [1994 (9) TMI 86 - SUPREME COURT], observed that there should be an intent to evade payment of service tax if the extended period of limitation has to be invoked. The Commissioner, therefore, fell in error in observing that the appellant had suppressed information from the Department regarding payment of service tax by the appellant on works contract service and availment of CENVAT credit and then holding that mere suppression of facts was enough for invoking the extended period of limitation. Even suppression of facts has to be wilful and in any case, suppression has also to be with an intent to evade payment of service tax. Though, the Commissioner in the last sentence of paragraph 8.6 of the order observed that “in any case, the noticee, in this case, has willfully contravened the provisions of the Finance Act”, but there is no discussion or reasons given by the Commissioner for so concluding and only a bald statement has been made and that too as an alternative finding. It is not possible to sustain the finding recorded by the Commissioner that the Department was justified in invoking the extended period of limitation contemplated under the proviso to section 73(1) of the Finance Act. Also, the proposal in the show cause notice relating to recovery of amount under section 73A of the Finance Act and interest thereon under section 73B of the Finance Act has not been confirmed in the impugned order - It is not possible to accept the contention of the learned Authorised Representatives for the Department that since there was a proposal for recovery of ₹ 2,44,48,095/- under section 73A of the Finance Act in the show cause notice, the said demand can be confirmed in these proceedings, even if the Commissioner has dropped the demand made under section 73(1) of the Finance Act. The imposition of penalty and recovery of interest cannot also be sustained - Such being the position, when the demand could not have been confirmed under section 73(1) of the Finance Act, it will not be necessary to examine the other contentions raised by the learned Counsel for the appellant for quashing the impugned order. Appeal allowed - decided in favor of appellant.
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