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2022 (6) TMI 860 - AT - Service TaxInvocation of extended period of limitation - Non-payment of service tax on several items of work - business auxiliary service - whether the Department was justified in invoking the extended period of limitation of five years, because admittedly the show cause notice was issued on October 24, 2009 for the period 2004-2005 to 2007-2008? - HELD THAT:- In the present case, the show cause notice merely mentions that the appellant suppressed the value of taxable service. The show cause notice does not mention that suppression was with an intention to evade payment of service tax. The submission of learned authorized representative appearing for the Department that the show cause notice also mentions that suppression was with an intent to evade payment of service tax cannot be accepted because the said allegation is in regard to levy of penalty under sections 76 and 78 of the Finance Act and not section 73(1) of the Finance Act. The Commissioner, however, observed that the appellant had evaded payment of service tax by suppressing the correct value on taxable service. The finding has not only been recorded without giving reasons, but even otherwise the order cannot go beyond the show cause notice. In COMMISSIONER OF CENTRAL EXCISE, NAGPUR VERSUS M/S BALLARPUR INDUSTRIES LTD [2007 (8) TMI 10 - SUPREME COURT], the Supreme Court observed that it was well settled that a show cause notice is the foundation in the matter of levy and recovery of duty, penalty and interest and if there was no invocation of Rule 7 of the Valuation Rules, 1975 in the show causes notice, it would not be open to the Commissioner to invoke the said Rule - In NESTOR PHARMACEUTICALS LTD. VERSUS COMMISSIONER OF C. EX. DELHI [2000 (1) TMI 187 - CEGAT, NEW DELHI] a Division Bench of the Tribunal observed that the Commissioner (Appeals) cannot go beyond the scope of the show cause notice and that no matter can be decided on a ground other than the grounds raised in the show cause notice and for this reason the impugned order was set aside. It, therefore, follows that the Commissioner was not justified in holding that the extended period of limitation under the proviso to section 73(1) of the Finance Act was correctly invoked - Appeal allowed - decided in favor of appellant.
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