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2016 (9) TMI 187

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..... ould appear that the extended period was invoked, not for recovery of non-levied tax but, merely to impose penalties under section 76 and 78 of Finance Act, 1994. The finding of the first appellate authority that demand is barred by limitation is, therefore, legal and proper. Refund claim - classification - support service of business or commerce – Held that: - The appeal relating to refund claim has not brought out any evidence that tax has been paid in excess of dues. Setting aside of the order of adjudicating authority on ground of limitation does not entitle the assessee to refund – appeal disposed off – decided against appellant. - ST/248 & 667/2010 - A/89054-89055/16/STB - Dated:- 3-2-2016 - Shri M V Ravindran, Member (Judici .....

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..... September 2006 in consonance with the decision of Hon ble Supreme Court in Nizam Sugar Factory v. Collector of Central Excise, AP [2006 (197) ELT 464 (SC)]. The departmental appeal challenging the dropping of penalty under section 76 of Finance Act, 1994 by the original authority was dismissed. Appeal of Revenue prays for the quashing of the order of the appellate authority and restoration of the order of the original authority with imposition of the penalty dropped by the original authority. 2. At this stage, we take notice of the two reliefs sought by Revenue: one for setting aside the impugned order no. AGS(221-222) 24M 194/2010 dated 17th August, 2010 and the other for upholding the order dated 4th May 2010 of the original authority .....

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..... of support services of business or commerce for the period from June 2006 to March 2008. Refund application was filed on 27th August 2008 claiming that, as the assessing officer had denied them categorization as provider of support services of business or commerce , the tax so paid was liable to be returned. 4. The assessee, discharging tax on commission/incentive under protest from September 2004, had, consequent to decision of the Tribunal in re M/s Silicon Honda and acceptance of classification claimed by another dealer as provider of support services of business or commerce continued to pay tax but under the new head after June 2006. Following protracted correspondence on alleged deficiencies in the claim notice for rejection .....

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..... March 2009 in two separate proceedings. It also appears that, after investigation commenced, the assessee had been depositing tax on the commission/incentives either under protest in the category of business auxiliary service or under some taxable category other than business auxiliary service . It would appear that the two notices covering the entire period were issued with intent to appropriate the taxes paid and for imposition of penalties. The assessee, under some misapprehension of being held liable for tax once again for the period between June 2006 and March 2008 when tax was paid under an alternative category, sought the refund which was rejected by the two lower authorities. Appeal of the assessee relates to the rejection o .....

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..... d. The notice clearly records that ST-3 returns were filed till 2009. In the light of the decision of the Hon ble Supreme Court in re Nizam Sugar Factory [2006 (197) ELT 465 (SC)] holding that: 9. Allegation of suppression of facts against the appellant cannot be sustained. When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. We agree with the view taken in the aforesaid judgments and respectfully following the same, hold that there was no suppression of facts on the part of .....

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