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2017 (8) TMI 1441

ly preceding the show cause notice and the demand for the rest of the earlier periods is barred by limitation - Whether the Tribunal is justified in holding that the demand was time barred despite the fact that there was suppression of fact and extended period of limitation was correctly invoked by Adjudicating Authority? - Held that:- Section 73 of FA, states that the period of limitation for issuing notice to show cause why service tax should be not paid or realised is dependant upon the omission or failure on the part of the assessee in filing the return u/s 70 of the Act is five years from the relevant date. - The bonafides of the assessee or any confusion or difference in opinion as to the categorisation of the service are not .....

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of the Finance Act, 1994 (hereinafter referred to as 'the Act'). The order in original stated that the respondent provided services in the nature of consulting engineer. The appeal preferred by the respondent was dismissed on 19.03.2005 holding that the nature of service provided by the respondent is not that of consulting engineer but that of management consultant. The CESTAT vide order dated 25.01.2006 remanded the matter to the Commissioner (Appeals) to decide afresh as to the nature of services rendered by the respondent. On remand, the Commissioner (Appeals) vide order dated 12.10.2006 held that the services rendered by the respondent are actually that of management consultant and in view of the genuine dispute as to the catego .....

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009 (238) ELT 21 (SC), it has been laid down that suppression of facts is essentially a question of fact and does not give rise to any substantial question of law. In CCE & C, Mumbai v. Bell Granito Ceramica Ltd., (2006) 5 SCC 188, relying upon the earlier decision, the Hon'ble The Supreme Court held that question whether there is suppression of facts is a question of fact depending upon the facts and circumstances of the particular case. In CCE, Allahabad v. U.P. State Yarn Co. Ltd., 2010 (251) ELT 16 (All.), it has been held that where question is based on the findings recorded by the Tribunal on appreciation of evidence and material on record, it is not a question of law. The gist of the aforesaid authorities is: (i) The suppress .....

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Assistant Commissioner of Central Excise or, as the case may be, the Deputy Commissioner of Central Excise has reason to believe that by reason of omission or failure on the part of the assessee, to make a return under section 70 for any prescribed period to disclose wholly or truly all material facts required for verification of the assessment under section 71, the value of taxable service has escaped assessment or has been underassessed or service tax has been paid or has been short-paid or any sum has erroneously been refunded, or (b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner o .....

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the aforesaid provision shorn of all other conditions therein which are not relevant, would establish that the period of limitation for issuing notice to show cause why service tax should be not paid or realised is dependant upon the omission or failure on the part of the assessee in filing the return u/s 70 of the Act is five years from the relevant date. The bonafides of the assessee or any confusion or difference in opinion as to the categorisation of the service are not at all relevant factors for the purposes of issuing notice under the aforesaid provision. The only thing that is relevant is omission to file return. In the case at hand, it is admitted on record that the respondent had not got itself registered and had failed to file re .....

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