Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2023 (12) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (12) TMI 437 - CESTAT NEW DELHIAdvance payment received in terms of the Notification No. 36/2010 –ST dated 28.06.2010 to avail the benefit of the exemption - Date of receipt of consideration of services in case where cheques were received on or before 30.06.2010 but were honoured on or after 01.07.2010 - suppression of facts or not - extended period of limitation - HELD THAT:- It is not a case of suppression or mis- statement of facts as no specific allegations have been made in the show cause notice. She is right in saying that the issue involved interpretation of the notification so as to be entitle to claim the exemption therein. There can always be two opinion as to whether it is the date of the cheque on which it is being presented or the date when the said cheque is encashed which has to be taken into account. The appellant was under a bonafide belief that since they had received the advance payment by way of cheque prior to the appointed date, they were entitle to the exemption under the notification and therefore did not pay the service tax. In such circumstances, the invocation of the extended period of limitation has been held in series of decisions to be untenable and therefore the demand shall not be maintainable. In the decision of this Tribunal in M/S. GANNON DUNKERLEY & CO. LTD. VERSUS COMMISSIONER (ADJUDICATION) OF SERVICE TAX, NEW DELHI [2020 (12) TMI 1096 - CESTAT NEW DELHI], it has been observed that where the appellant is regularly filing the returns, the department cannot take a stand that it is only during the audit that it can examine the factual position and therefore it cannot be urged by the department that if the officers of the audit team had not conducted the audit, non-payment of service tax would not have been unearthed and therefore the extended period of limitation could not have been invoked as it was not a case of suppression of facts by the appellant. In the present case also, it is the submission of the appellant that they are duly filing ST-3 returns, which has not been disputed by the learned authorised representative for the revenue and therefore in the light of the principles laid down by the Principal Bench, the extended period of limitation cannot be invoked by the department. The penalty and the interest shall also not be levied - Appeal allowed.
|