TMI Blog2016 (12) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence this is a case where only normal time limit will be available to the Revenue for demand of service tax under Section 73 - appeal dismissed - decided against Revenue. - Service Tax Appeal No. 1223 of 2011 - Final Order No. 55282/2016 - Dated:- 25-11-2016 - Mrs. Archana Wadhwa, Member (Judicial) And Shri V. Padmanabhan, Member (Technical) Shri Ranjan Khanna, Authorized Representative (DR) for the appellant Shri A.K. Batra, C.A. for the respondent ORDER Per V. Padmanabhan This is an appeal filed by Revenue against the order-in-original dated 05/5/2011 passed by Commissioner (Adj.), New Delhi in which he dropped the service tax demand raised by Revenue vide the show cause notice dated 21/5/08. 2. The assessee is registered for providing services. Service tax demand was raised against the assessee on the following grounds :- During the period 10/9/04 to 31/3/06, the assessee received brokerage/incentive in respect of Initial Public Offering (IPO). During the same period the assessee also acted as share transfer agent for certain companies and received fees from them. On both these services, the assessee started paying service tax under the categ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces have been notified for payment of service tax w.e.f. 01/5/06. It is also not in dispute that the assessee has discharged the service tax liability w.e.f the said date. It is fairly well settled that a service is liable to service tax only from the date on which it is brought on the statute. For the period prior to that date service tax cannot be levied by including it under any other service. Such views has been clearly spelt out by the Tribunal in its decisions :- (i) CCE, Indore vs. Ankit Consultancy Ltd. (supra); (ii) CCE, Hyderabad vs. Sathguru Management Consultants Private Limited (supra) Consequently there is no justification for charging service tax for the period prior to 01/5/06 and the demand made on this count needs to be set aside on merits. 8. Learned Commissioner has set aside the entire demand on the ground of time bar. His detailed findings in this regard are as follows :- 3.4 The demand for the value of the services with respect to business auxiliary service has been made for the financial years 2004-2005 and 2005-2006. For the half year ending on 31.03.2006, the last date for filling the ST-3 Return was 25th April, 2006. Accordingly, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. The normal period of limitation under Section 11 A is six months which can be extended to five years on grounds identical to the grounds to mentioned in Section 73. Dealing with the provisions of Section 11A, the Hon ble Supreme Court of India made following observations: 3.Excise Section 11A of the Act empowers the Central Officer to initiate proceedings where duty has not been levied or short-levied within six months from the relevant date. But this period to commence proceedings under proviso to the Section stands extended to five years if the duty could not be levied or it was short-levied due to fraud, collusion, wilful misstatement or suppression of facts etc. The proviso to Section 11 A reads as under: Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any willful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder, with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if for the words Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make the demand for duty sustainable beyond a period of six months and up to a period of 5 years in view of the proviso to sub-section 11 A of the Act, it has to be established that the duty of excise has not been levied or paid or short- levied or short-paid, or erroneously refunded by reasons of either fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment of duty. Something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, beyond the period of six months. Whether in a particular set of facts and circumstances there was any fraud or collusion or wilful misstatement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case. (emphasis Supplied) Accordingly, for invoking extended period of limitation mere failure on the part of the assessee to pay the tax or file the prescribed Returns is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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