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2022 (12) TMI 1143 - AT - Service TaxInvocation of extended period of limitation - non-payment of service tax - providing the taxable service as that of Business Auxiliary Service on commission basis who had collected huge amount from various persons/companies/organizations etc. during the period from 01.10.2014 to 30.06.2017 - suppression of facts or not - HELD THAT:- It is an admitted case of the appellant that the appellant did not get itself registered under Service Tax Commissionerate during the period in question while providing the impugned “Business Auxiliary Services” on commission basis. It has also been acknowledged while making submissions that the issue of services in question being taxable is no more res integra - Reliance placed in the decision of this Tribunal in the case of VED AUTOMOTIVES VERSUS COMMISSIONER OF CENTRAL EXCISE, KANPUR [2016 (11) TMI 836 - CESTAT ALLAHABAD], wherein a reference has been answered holding that the activity of direct selling agent on commission basis is a “Business Auxiliary Service” which is taxable under Section 65 (19) of the Finance Act, 1994. Whether the demand should not have been confirmed as the Show Cause Notice was issued beyond the normal period of limitation? - HELD THAT:- It is observed that department can issue a show cause notice beyond the prescribed period of one year from the period under question only in accordance of the proviso to Section 73 of the Finance Act, 1994 - here there is suppression of any fact for the reason of fraud or collusion or any willful misstatement with an intent to evade duty, the department is entitled to invoke the extended period. No doubt mere non-disclosure of fact will not be such suppression as may entitle the department to invoke this provision except where there is an intent to evade the duty. From the above observed admission of the appellant, it is clear that appellant was not paying the service tax to the department despite providing the taxable service. It is also nowhere denied that even the service tax registration was not obtained. It is also observed that the present show cause notice was issued based upon the information received from the Income Tax Department. It becomes clear that the amount received by the appellant during the period under challenge was taken as the income of the appellant and accordingly, the income tax liability thereupon was being discharged by the appellant. The circumstances are sufficient for me to hold that there was no intent on the part of the appellant to evade the liability - it is held that the intent to evade the duty has wrongly been confirmed against the appellant. The non-payment of service tax was purely a bona fide unawarenss about the liability. In such circumstances the extended period could not have been invoked. The order under challenge though has dealt with the amount which was service tax liability of the appellant but the demand was not raised during the statutory period prescribed for raising the same. As held above, there was no reason to invoke the extended period of limitation. It is held that demand has been time barred and thus has wrongly been confirmed by Commissioner (Appeals). Appeal allowed.
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