TMI Blog2014 (4) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... ves that there was reasonable cause for the said failure. The demand of duty stands invoked and confirmed in terms of Section 73 of the Finance Act. The proviso to Section 73 of the Finance Act allows the Revenue to raise the demand within the extended period of 5 years for fraud, wilful mistake, suppression of facts or contravention of provisions of the Act, with intent to evade payment of duty. As such, it is clear that provision of Section 73 is invokable when there is no reasonable cause on the part of the assessee not to pay the duty inasmuch all the circumstances mentioned in the said proviso relate to mala fide intention. As such, it can be reasonably concluded that proviso to Section 73 and Section 80, if interpreted in a harmon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice dated 1-10-2010 proposing recovery of present Service Tax. However, both sides fairly concedes that no categorisation of any service was done in the show cause notice. The said show cause notice proposing Service Tax also stands confirmed by the original adjudicating authority without holding as to under which category the same fall. Even the appellate authority has not held the classification of the services under which the appellant is falling and is required to pay the Service Tax. 5. In any case, the Service Tax confirmation stands appealed by the learned advocate on the point of time bar. The show cause notice stand issued on 1-10-2010 for the period 1-4-2005 to 31-3-2010. By drawing attention to the finding of Join ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the said failure. The demand of duty stands invoked and confirmed in terms of Section 73 of the Finance Act. The proviso to Section 73 of the Finance Act allows the Revenue to raise the demand within the extended period of 5 years for fraud, wilful mistake, suppression of facts or contravention of provisions of the Act, with intent to evade payment of duty. As such, it is clear that provision of Section 73 is invokable when there is no reasonable cause on the part of the assessee not to pay the duty inasmuch all the circumstances mentioned in the said proviso relate to mala fide intention. As such, it can be reasonably concluded that proviso to Section 73 and Section 80, if interpreted in a harmonious manner lead to only one fact that is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has set aside penalties under Section 80 of the Finance Act, 1994, the demand confirmed for the extended period cannot be sustained. Further in the case of Solitz Corporation v. CST, New Delhi [2009 (14) S.T.R. 642 (Tri.-Del.)], it was observed that inasmuch as the impugned order hold sufficient cause for invocation of Section 80 of the Finance Act, for waiver of penalty, extended time-limit is not invocable. 10. By following the ratio of above decisions, I find that inasmuch as the original adjudicating authority has not imposed any penalty on the appellant by invoking the provisions of Section 80 and the said order of the Joint Commissioner was not appealed against before the Commissioner (Appeals), I hold that demand beyond the norm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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