TMI Blog2018 (3) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... e Property cannot be affected invoking extended period of limitation - appeal allowed - decided in favor of appellant. - Appeal No. ST/10293/2013 - ORDER No. A/10529 / 2018 - Dated:- 28-2-2018 - Dr. D. M. Misra, Hon'ble Member (Judicial) For the Appellant : Shri Saurav Dixit, Advocate For the Respondent : Shri J. Nagori, AR ORDER Per : Dr. D. M. Misra This is an appeal filed against the order-in-appeal No. SRP/182/DMN/2012-13 dated 10.01.2013 passed by Commissioner (Appeals), Customs, Central Excise, and Service Tax-Daman 2. Briefly stated the facts of the case are that the appellant had rented their premises to one M/s Amod Stamping Pvt. Ltd., and collected rent during the period June 2007 to March 2008, but, failed to discharge service tax under the taxable category of Renting of Immovable Property Service . Later, on receiving a communication from the department in March 2010 they paid service tax for the period April 2009 to March 2010; and later after undertaking necessary investigation, SCN was issued on 07.01.2011 for recovery of the service tax amounting to ₹ 4,59,968/- for the earlier period from April 2008 to March 2009 with interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d provision is self contained and mandates for recovery of the 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. It is his contention that the said provision though has been passed subsequently by the legislature but applicable from June 2007 till the date of retrospective amendment, which clearly shows the intention of the legislature to validate the levy of service tax with retrospective effect. It is his contention that this provision itself is a self contained code and the time limit prescribed under Section 73 of Finance Act will not be applicable for recovery/demanding tax not paid during the period in question. Further, distinguishing the judgements cited by the Ld. Advocate for the appellant, the Ld. AR has submitted that in all these cases, the assesses were registered with the department and the department has been aware of their activities and in Nagar Palika Parishad s case the appellant was Government body, and therefore, the extended period of limitation was held to be not applicable. Further, distinguishing the judgment of the Calcutta High Court in Infinity Infotech Parks Ltd s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be done or purported to have been taken or done or omitted to be done under sub-clause (zzzz) of clause (105) of section 65 of the Finance Act, 1994 (32 of 1994), at any time during the period commencing on and from the 1st day of June, 2007 and ending with the day, the Finance Bill, 2010 receives the assent of the President, shall be deemed to be and deemed always to have been, for all purposes, as validly and effectively taken or done or omitted to be done as if the amendment made in sub-clause (zzzz) of clause (105) of section 65, by sub-item (i) of item (h) of sub-clause (6) of clause (A) of section 76 of the Finance Act, 2010 had been in force at all material times and, accordingly, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, (a) any action taken or anything done or omitted to be taken or done in relation to the levy and collection of service tax during the said period on the taxable service of renting of immovable property, shall be deemed to be and deemed always to have been, as validly taken or done or omitted to be done as if the said amendment had been in force at all material times; (b) no sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the fact that the assesses are rendering the taxable service. The Hon ble Calcutta High Court has recently considered the issue of recovery service tax on renting of immovable property invoking the extended period of limitation. After analysing the implication of the retrospective legislation observed as follows:- 62. In Home Solution Retail Anr. v. Union of India Ors. reported in 2009 (237) E.L.T. 209 (Del.) = 2009 (14) S.T.R. 433 (Del.), the Delhi High Court had held that rent per se was not a taxable service. The provisions of the Finance Act, 1994 relating to the service of renting of immovable property have since been amended by the Finance Act, 2011, with retrospective effect. The amendment with retrospective effect from 1st June, 2007 makes rent per se a taxable service. 63. The provisions of Section 73(1) of the Finance Act are in pari materia with Section 11A of the Central Excise Act, 1944, which is set out herein below for convenience : Section 11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. - (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it overrides the provision of Section 11A. If the intention of the Legislature was to nullify the effect of Section 11A, in that case, the Legislature would have specifically provided for the same. Section 51 does not contain any non obstante clause, nor does it refer to the provision of Section 11A. In the circumstances, it is difficult to hold that Section 51 overrides the provision of Section 11A. 33. There is no provision in the Act or in the Rules enabling the Excise authorities to make any demand beyond the periods mentioned in Section 11A of the Act on the ground of the accrual of cause of action. The question that is really involved is whether in view of Section 51 of the Finance Act, 1982, Section 11A should be ignored or not. In our view Section 51 does not, in any manner, affect the provision of Section 11A of the Act. In the absence of any specific provision overriding Section 11A, it will be consistent with rules of harmonious construction to hold that Section 51 of the Finance Act, 1982 insofar as it gives retrospective effect to the amendments made to Rules 9 and 49 of the Rules, is subject to the provision of Section 11A. 65. In the instant case too, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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