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TMI Blog2018 (5) TMI 1716X X X X Extracts X X X X X X X X Extracts X X X X ..... id the service tax on the taxable services under the category of advertising services provided to their clients Directorate of Audio and Visual Publicity, New Delhi (DAVP); Information & Public Relations Department, Government of Andhra Pradesh (IPRD) and Afro Asian Games. They have neither paid the service tax to the government nor declared these details in the periodical returns in ST-3 filed by them. During the year 2002-03 to 2006-07, they received a gross amount of Rs. 3,52,42,175/- from these three organisations and were liable to pay service tax of Rs. 32,06,783/- and education cess of Rs. 53,856/- on the taxable value of Rs. 3,19,81,536/-. A show cause notice was issued demanding the service tax alongwith interest and proposing to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment of Andhra Pradesh had informed the appellant that service tax is not payable on the services rendered to them. They submitted an U.O. Note No. 13643/CT.II(1)/2004-3, dated 24.02.2005 issued by Special Chief Secretary to Government of Andhra Pradesh clarifying to the concerned authorities that it is necessary to pay service tax to the service providers who are not exempted from service tax. They argued that it shows everybody including the Government was under the impression that no service tax was payable until they receive clarification from the concerned authorities and hence they were under the bonafide belief that no service tax was payable and there was no intent to either suppress the information or evade payment of service t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Tribunal in the case of Nizam Sugar Factory vs. CCE Hyderabad [1999(114)ELT (429) (T-LB) was over ruled by Hon'ble Supreme Court in [2006(197)ELT 465 (S.C.)]. In fact this ruling of Hon'ble Supreme Court was with respect to the suppression invoked in the second and third periodical notices issued subsequent to the main notice but not in connection with the ingredients leading to invocation of extended period in the main notice. It is a settled law that the knowledge of the department is not the criteria. The period of five years is from the relevant date which is the date of filing the return as defined in section 73. The notice dated 22.06.2007 covering the period from April 2002 was issued within five years from the relevant date. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the appellant had taken service tax registration and had filed ST-3 returns. However, they have not included the value of the services provided to the aforesaid three government organisations in their returns nor paid tax on them. It is their case that they did not pay the service tax as they were under the impression that service tax was not payable on these services. They also produced the U.O. Note No. 13643/CT.II(1)/2004-3, dated 24.02.2005 issued by Special Chief Secretary, Government of Andhra Pradesh to substantiate their view that they were under the general impression that tax was not payable which was credited by issuing the said O.M. They argued that they have not collected any amount towards service tax and retained with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knowledge that their services are taxable. 6 Interest and penalty also stands modified accordingly. We also found that penalty was imposed both under Sections 76 and 78 of the Finance Act 1994. Since it is now well established fact that no penalty can be imposed under section 76 of Finance Act, even before amendment to this Section w.e.f. 14.05.2015 or prior to it, the penalty imposed under section 76 is, therefore, set aside. In conclusion, the demand is sustained and the extended period of demand is invokable from 24.02.2005 till the date of show cause notice as the ingredients to invoke the extended period, viz; suppression of the value of taxable services by the appellant is established. Penalty under section 78 also gets modified acco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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