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2022 (12) TMI 1144 - AT - Service TaxLevy of Service tax - Business Auxiliary service of not - commission amount paid to foreign Commission agent - extended period of limitation - Revenue Neutrality - HELD THAT:- As regards the question of extended period of limitation under proviso to Section 73(1) of the Finance Act, 1994, the same would not be available to the Department on the ground of revenue neutrality. We are of the view that the demand, having been raised by invoking the longer period of limitation is hit by the provisions of Section of the Act. If non-registration and non-filing of returns is the criteria for rejecting the appellant‟s plea of bona fide belief and holding against them, the plea of limitation would not be available to any assessee, inasmuch as the Service Tax liabilities would arise only in those cases where the appellants are not registered and are not filing the returns. Coming to the bona fide belief of the assessee, there are number of factors which are required to be considered. As no intention to contravene the provisions of Finance Act, 1994 and of the rules made thereunder can be attributed to the appellant for the reason that even if they are required to pay Service Tax on the disputed service, in question, provided by foreign agent, the entire Service Tax paid under RCM would be immediately available to them as Cenvat Credit and collection of Service Tax from the appellant would be a revenue neutral exercise - there are plethora of judgments by various Courts that no mala fide can be attributed to an assessee so as to invoke the longer period of limitation. The demand is barred by limitation and is required to be set aside - Appeal allowed.
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