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2023 (2) TMI 730 - CESTAT MUMBAIExtended period of limitation - SCN issued beyond normal period - Section 73 of the Finance Act, 1994 - wilful misstatements of facts or not - short payment of service tax - Business Support Service - HELD THAT:- The recovery of short-levied or non-levied or short-paid service tax amount within the normal period is the rule, in the eventuality of short-levy or short-payment of tax amount by the assessee. In other words, whatever may be the reason, if the service tax amount has not been paid by the assesse, the department is free to initiate proceedings under the main part of sub-section (1) of Section 73 ibid to recover of the service tax amount, which have been short-levied or non-levied etc. On the contrary, invocation of the proviso clause contained in Sub-Section (1) of Section 73 ibid is the exception, which can be sparingly invoked, only in the eventuality, of fraud or collusion or wilful mis-statement or suppression of facts or contravention of any of the provisions of the Chapter V of the Finance Act, 1994 or rules made there under, with intent to evade payment of the service tax. In such eventuality, instead of the period of one year, the show cause notice can be issued by invoking the extended period of limitation within the period of five years from the relevant date. In this case, it is an admitted fact on record that based on the books of accounts, maintained by the appellant, the officers of service tax department had conducted the audit and they have not disputed the authenticity or accuracy of records maintained by the appellant. Further, it is also an admitted fact on record that towards provision of the taxable service, the appellant had received lesser amount than that as shown in the invoices issued to the service recipient. Since, towards provision of the taxable service, the appellant had received the lesser amount, after adjustment of the aforementioned deductions, their tax liability is confined only to the amount, which was actually received for provision of the taxable service. Thus, under such circumstances, the charges of suppression etc. cannot be levelled against the appellant. There are no merits in the impugned order, insofar as it has confirmed the service tax demand for extended period, beyond one year along with the interest and penalty under Section 77 ibid on the appellant - appeal allowed.
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