TMI Blog2009 (10) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the ‘Tourist taxi owners’ Association challenging the constitutional validity of the levy. The assistant commissioner dropped the proceedings on the ground that the demand was barred by limitation. The commissioner revised the said order and held that failure on the part of the assesese to remit service tax dues specially when the High Court upheld the levy and their stubborn attitude of withholding the information by not filing the half yearly returns for the disputed period, was nothing but suppression of facts and deliberate and willful intent to evade payment of service tax and, therefore, extended period of time limit under section 73 was very much invocable in the instant case for demand of service tax for the disputed period. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from 1-4-2000. On 30-4-2001, the Madras High Court dismissed Writ Petition No. 18673/1997 and others, challenging the constitutional validity of the levy by upholding the validity. From May, 2001, the appellants started paying service tax and started filing returns. From 4-9-2001, the jurisdictional Superintendent of Service Tax issued letters to all tour operator service providers including the appellants herein, seeking recovery of income-tax for the period from 1-4-2000 to 30-4-2001. Aggrieved by the above, the appellants filed appeals before the Commissioner (Appeals), Chennai, who vide order dated 23-11-2001, held that the letters dated 4-9-2001 issued to the appellants by the jurisdictional Superintendent of Service Tax to all 'Tour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of sections 76, 77 and 78 of Chapter V of the Finance Act, 1994. Hence these appeals. 3. I have heard both sides. The finding of the Commissioner (Appeals) on limitation is contained in paragraph 10 of the impugned order which is reproduced herein below : "From the foregoing, it is clear that though the assessee were well aware of their service tax liability from 1-4-2000 did not prefer to remit the service tax because of their awareness only when they approached the Hon'ble High Court. Therefore, when the High Court dismissed their pleas during April, 2001, they ought to have paid service tax and filed returns. The department's directions by way of letter was only to remind him about his dues. When the assessee did not do so the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w-cause notice invoking extended period of time-limit. Therefore, by omission, and failure to file the statutory return the assessee had suppressed the facts with wilful intent to evade payment of service tax and the extended period of time-limit under section 73 of the Act is very much invocable in this case for demand of service tax for the disputed period." The above finding is not sustainable - once the Hon'ble High Court of Madras dismissed the writ petitions challenging the validity of the levy of service tax on Tour Operators, the department should have issued show-cause notice within the normal period of limitation as all facts regarding liability of the appellants to service tax during the relevant period, after withdrawal of exe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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