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2024 (2) TMI 85 - CESTAT BANGALOREInvocation of extended period of limitation - suppression of facts or not - classification of services - Business Support Service or not - catering commission from caterers. Invocation of Extended period of Limitation - HELD THAT:- Hon’ble Apex Court in the matter of M/S CONTINENTAL FOUNDATION JOINT VENTURE SHOLDING, NATHPA HP VERSUS COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH-I [2007 (8) TMI 11 - SUPREME COURT] held that suppression means failure to disclose full information with intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression - in the present case, in response to summons dated on 21.06.2006, appellant has disclosed details of transaction and after the audit for the earlier period, no show-cause notice was issued. Thereafter, based on third audit report pertaining to same transactions, show-cause notice was issued on 20.10.2009 for the period 2006-07 and hence not sustainable in law. Classification of service - HELD THAT:- It is an admitted fact that for the entire amount collected from the members, service tax is paid by both the caterers on the gross amount including the amount deducted by Appellant. Though the transactions carried out by the appellant with M/s Sreenivasa Caterers and M/s Swadeshi Caterers are very similar in nature, first Appellate authority partly allowed the appeal with respect to the service rendered by M/s Sreenivasa Caterers. Further as per the law laid down by Hon’ble Apex Court in the matter of STATE OF WEST BENGAL AND OTHERS VERSUS CALCUTTA CLUB LIMITED [2016 (6) TMI 476 - SUPREME COURT] and in appellant’s own case M/S. KARNATAKA GOLF ASSOCIATION VERSUS THE COMMISSIONER OF SERVICE TAX BANGALORE [2023 (6) TMI 1326 - CESTAT BANGALORE], benefit of small-scale exemption under Notification No. 6/2005 dated 01.03.2005 could have been extended by the Department in respect of the value of taxable services, if any and the appellant would be entitled to cum tax value benefit in terms of Section 67 of the Finance Act, 1994, also. The confirmation of demand of service tax with interest and imposition of penalty are not sustainable. Hence, the Appeal is allowed.
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