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TMI Blog2018 (3) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... the earlier period from April 2008 to March 2009 with interest and penalty. On adjudication, the demand was confirmed with interest and penalty. Aggrieved by the said order, they filed appeal before the Commissioner (Appeals), who inturn, rejected their appeal. Hence, the present appeal. 3. The Ld. Advocate S. Dixit for the appellant has submitted that there was confusion regarding the chargeability of service tax on Renting of Immovable Property Service during the period in question i.e. after introduction of the said levy w.e.f. 01.06.2007 as is evident with the delivery of the judgement of the Hon ble Delhi High Court in the case of Home Solution Retail India Ltd. Vs. Union of India 2009 (14) STR 433 (Del.) declaring the said provision as ultra vires. It is his contention that the appellant had discharged service tax for the period 2009 to 2010, however, since the demand was issued for the earlier period, it is barred by limitation, therefore, no service tax was paid on the rent amount received during the period 2007 to 2008. He submits that the issue of recovery of service tax by invoking extended period of limitation on the aforesaid service is no more res-integra is covered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Calcutta High Court in Infinity Infotech Parks Ltd s case he has submitted in exercising the writ jurisdiction, the Show Cause Notice issued by the Commissioner of Central Excise was quashed as there was no independent scrutiny and application of mind and the whole allegation was based on the observation of CERA Audit. In the present case, the appellant though leased their premises, but, neither obtained the service tax registration nor filed ST-3 Returns, therefore, the department was itself not aware of whether the Appellant had rendered the taxable service during the relevant period ; also the amount of service tax liability for the period 2009-10 was paid by the appellant subsequent to investigation initiated by the department by way of recording statements, issuing letters to the appellant for furnishing information in March 2010. Further, he has submitted that the judgement by the Hon ble Delhi High Court was delivered in the Year 2009, whereas the appellant had been collecting rent on their leased premises from 2007 onwards but suppressed the said fact from the department when they had exceeded the threshold exemption limit of Rs. 4.00 lakhs and required to discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in force at all material times; (b) no suit or other proceedings shall be maintained or continued in any court, tribunal or other authority for the levy and collection of such service tax and no enforcement shall be made by any court of any decree or order relating to such action taken or anything done or omitted to be done as if the said amendment had been in force at all material times; (c) recovery shall be made of all such amounts of service tax, interest or penalty or fine or other charges which may not have been collected or, as the case may be, which have been refunded but which would have been collected or, as the case may be, would not have been refunded, as if the said amendment had been in force at all material times. Explanation. For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable had this amendment not come into force. 6. In the present case, the appellant was not registered with the department, but on being pointed by the department, discharged service tax for the period 2009-2010, subsequently; but, disputed their liability for the period 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt-levied or short-paid or erroneously refunded, whether or not such non-levy or non-payment, short-levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder, a Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : 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 wilful 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 one year , the words five years were substituted : * * * * ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se too, the Finance Act, 2011, whereby the provisions of the Finance Act, 1994, relating to the service of renting of immovable property have been amended, does not contain any provision which enables the Service Tax Authorities to make any demand beyond the period of limitation prescribed in Section 73(1) of the Finance Act, 1994. 66. Mr. Roychowdhury s submission that the extended period of limitation had rightly been invoked, as there was loss of Revenue and contravention of the provisions of Chapter V of the Finance Act, and the Rules made thereunder, is difficult to accept. If Mr. Roychowdhury s argument that the extended period would be invocable when there was non-payment of tax and consequential loss of Revenue and/or contravention of Chapter V of the provisions of the Finance Act, were to be accepted, Section 11A would be rendered meaningless since all cases of non-payment of tax result in loss of Revenue, and in a sense tantamount to contravention of Chapter V of the Finance Act and the Rules framed thereunder. 71. The proposition which emerges from the judgments of the Supreme Court referred to above, is that mere failure to disclose a transaction and pay tax thereon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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