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2016 (12) TMI 166 - CESTAT NEW DELHI

2016 (12) TMI 166 - CESTAT NEW DELHI - TMI - Extended period of limitation - Registrar and share transfer agent service - service was included in the statute took w.e.f. 01/5/06 - brokerage/incentive - fees for share transfer agent service - time bar - Held that: - 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 sufficient. It has to be proved that the assessee was aware that he is liable of pay service tax .....

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of limitation. - No evidence has been brought on record that the assessee has deliberately evaded service tax by over utilizing the Cenvat credit. 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 .....

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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 category of Registrar and share transfer agent which service was included in the statute took w.e.f. 01/5/06. Revenue took the view that these services for the above period (prior to 01/05/2 .....

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35%/20% of the service tax payable . 3. In the impugned order demands on both counts were dropped on account of time bar. 4. Revenue has challenged this order in the present appeal on time bar on the ground that the tax evasion could have remained undetected but for audit of the assessee by the service tax officials since the assessee has failed to file the ST-3 returns. This evidences the intention of the assessee to evade payment of service tax. Further, the information regarding receipt of b .....

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as share transfer agent, they have paid the service tax w.e.f. 01/5/06 the date on which these activities were brought on the Statute Book as liable to service tax. For the period prior to 01/5/06, no service tax can be levied on these services as held in the following case laws by the Tribunal :- (i) CCE, Indore vs. Ankit Consultancy Ltd. reported in 2007 (6) S.T.R. 101 ; (ii) CCE, Hyderabad vs. Sathguru Management Consultants Private Limited reported in 2007 (7) S.T.R. 654. 7. Service tax has .....

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rior 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 e .....

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was 25th April, 2007. The show cause notice has been issued on 21st May, 2008. The show cause notice is, therefore, not within the normal period of limitation of one year. In the show cause notice an allegation has been made that the assessee had intentionally and wilfully suppressed the facts of providing taxable services and collection of value of taxable services. It has also been alleged that the assessee did not file the prescribed ST-3 Returns. It is alleged that the omissions and commissi .....

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mitation is to be invoked then the initial onus of proof that the assessee had intentionally evaded the tax was on the revenue. Only after the initial burden was discharged, the extended period of limitation could be applied. Other than the allegation of intentional evading of tax, no evidence has been adduced to show that the assessee had the knowledge that he was liable to pay tax and he avoided to pay the tax. It is well established law that mere failure to pay the tax is not sufficient to in .....

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e is based on decisions of the Hon ble Supreme Court of India in the case of Tamil Nadu Housing Board v CCE, Madras, 1994(74) ELT 9 (SC), in relation to Section 11 A of the Central Excise Act, 1944. Section 11A of the Central Excise Act, 1944 is similar to Section 73 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 .....

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rovided 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 Officer , the words collector of Central Exci .....

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is proviso and invoke the exceptional power. Since the proviso extends the period of limitation from six months to five years, it has to be constructed strictly. The initial burden is on the Department to prove that the situations visualized by the proviso existed. But once the Department is able to bring on record material to show that the appellant was guilty of any of those situations which are visualized by the Section, the burden shifts and then applicability of the proviso has to be constr .....

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admini Products v. Collector of Central Excise 1989 (43) E.L.T. 195, it was held that where there was scope for doubt whether case for duty was made out or not, the proviso to Section 11 A of the Act would not be attracted. (emphasis supplied) In the present proceedings no evidence has been brought on record to prove that the situations visualized in proviso to Section 73(1) existed. There is nothing on record to show that the assessee was aware that he was liable to pay tax and he intentionally .....

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ablished 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 otherwi .....

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bed Returns is not sufficient. It has to be proved that the assessee was aware that he is liable of pay service tax and he deliberately evaded to pay the tax or the facts required to be disclosed to the revenue authorities were not deliberately and consciously disclosed to the revenue authorities. In the present proceedings only a few allegations have been made without adducing the evidence to support the allegations. The initial burden of proving that the situations visualized by proviso to Sec .....

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