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TMI Blog2018 (5) TMI 1424X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Board of Excise and Customs ("CBEC" for short) making certain clarifications in the service tax regime pursuant to the budget of the financial year 20102-011. They have also challenged individual show cause notices issued by the adjudicating authorities of Anand and Vasad seeking to recover unpaid service tax from the petitioners on transportation of Tur Dal with interest and penalty. 3. Case of the petitioners is that after introduction of service tax on transportation services to be collected through reverse charge mechanism, the Central Government had exempted such tax on transportation of specified goods under notification no.33/2004 dated 3.12.2004. In such notification, the Central Government exempted "taxable service provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Thus by virtue of the said exemption notification no. 4/2010 dated 27.2.2010, the service tax on transportation of Tur Dal was fully exempted. This circular however, opened up the question of levying such service tax on transportation of Tur Dal for the past period. One plausible approach would be, now that the exemption was specifically granted, it would necessarily mean that prior to such exemption under notification dated 27.2.2010, the levy of service tax on transportation of Tur Dal was not covered by exemption notification dated 3.12.2004. If the demand of the department for recovering the unpaid service tax being within the normal period of limitation, this issue would undoubtedly assume importance. 6. On or around 9.8.2012, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioners filed their first representation before the Chief Commissioner on 18.10.2012. This was followed by several other representations. In one such later representation, the petitioners also urged the authorities to involve CBEC who could as well issue exemption notification to obviate the difficulties arising out of such peculiar circumstances. On 13.11.2017, petitioner no.1 was informed by the department that CBEC has refused to exercise powers under section 11C of the Central Excise Act granting exemption. At that stage, the petitioners have once again approached the Court challenging the clarificatory circular dated 27.2.2010 as well as the impugned show cause notices. 9. The show cause notices have been issued sometime in A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.2004 already covered such product when it referred to vegetables and accordingly no service tax was levied on such activity. The petitioners have made specific averments in this respect in the petition which have not been denied by the respondents in their reply. With issuance of exemption notification dated 27.2.2010, it is possible to argue that such exemption would be available only from the date of notification and for 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 sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Act with intent to evade payment of service tax. 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. As noted, across the country, the trade did not pay service tax on transportation of Tur Dal till 2010 nor did the department raise any demand disputing the interpretation of the trade that the product Tur Dal was already included in the exemption notification. That being the position, nowhere the non payment of tax can be corelated to fraud, collusion, willful misstatement, suppression of facts or contravention of the statutory provisions by the petitioner with the intent to evade payment of duty. The show cause notices th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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