TMI Blog2018 (5) TMI 1424X X X X Extracts X X X X X X X X Extracts X X X X ..... the period prior to notification, service tax would have to be levied. This observation would have to be confined to the normal period of limitation prescribed under section 73 of the Finance Act, 1994. Subsection(1) thereof provides that where any service tax has not been levied or paid or has been shortlevied or shortpaid or erroneously refunded, the competent authority within eighteen months (at the relevant time. now substituted by 30 months) from the relevant date. The willful and conscious evasion of duty is the requirement for invoking the extended period of limitation. In the present case, such elements are totally missing - nowhere the non payment of tax can be corelated to fraud, collusion, willful misstatement, suppression of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 3.12.2004. In such notification, the Central Government exempted taxable service provided by a goods transport agency to a customer, in relation to transport of fruits, vegetables, eggs or milk by road in a goods carriage, from the whole of service tax leviable thereon under section 66 of the Act . According to the petitioners, relying on the relevant entries of the Central Excise Tariff Act where Tur Dal was clubbed with vegetables, all transporters, producers and even the department carried an impression that the said exemption notification no.33/2004 dated 3.12.2004 would cover within its sweep also transportation of Tur Dal. No service tax was therefore, paid for transportation of such goods, none recovered or demanded by the depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... normal period of limitation, this issue would undoubtedly assume importance. 6. On or around 9.8.2012, the Assistant/Additional Commissioners of Central Excise, Customs and Service Tax, Vasad and Anand issued several separate show cause notices to the members of the petitioner no.1 Association who are engaged since long in the business of transportation and in particular, transportation of Tur Dal. One such show cause notice dated 9.8.2012 is produced at AnnexureJ. 7. Previously, present petitioners in view of such factual background approached this Court by filing Special Civil Application No.13335/2012 and connected petitions. They had advanced a case that prior to exemption notification dated 27.2.2010, the trade as well as the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 27.2.2010 as well as the impugned show cause notices. 9. The show cause notices have been issued sometime in August/September 2012 whereas the amendment in the notification dated 3.12.2004 was made on 27.2.2010. After such date, in any case, by virtue of such amendment, transportation of Tur Dal would invite no service tax. Presumably, therefore, in all the show cause notices, the authorities have invoked the extended period of limitation. In other words, all the show cause notices engage the period of demand of duty which is beyond 18 months from the date of issuance of show cause notice which was the normal period of limitation prescribed under the statute at the relevant time. We have therefore, examined whether in facts of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Subsection( 1) thereof provides that where any service tax has not been levied or paid or has been shortlevied or shortpaid or erroneously refunded, the competent authority within eighteen months (at the relevant time. now substituted by 30 months) from the relevant date, serve notice on the person chargeable with the service tax or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. Proviso to subsection( 1) permitted the competent authority to invoke extended period of limitation under certain circumstances and reads as under : Provided that where any service tax has not been levied or paid or has been shortlevied or shortpaid or erroneo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, suppression of facts or contravention of the statutory provisions by the petitioner with the intent to evade payment of duty. The show cause notices thus which seek to levy such duty for the period beyond the normal period of eighteen months of limitation therefore, cannot survive. 12. All impugned show cause notices are therefore, quashed with one cautionary note however. We have all along approached the issue from the angle that all the show cause notices seek to recover unpaid service tax for the period beyond eighteen months from date of issuance of show cause notices. If there is any show cause notice which covers the period within eighteen months, these directions and observations will not apply. 13. Petition is disposed of. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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