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2017 (8) TMI 1441

Time Limitation - Classification of Services - CESTAT expressed opinion that the Assessing Authority could have demanded service tax from the respondent only for the period of one year immediately 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 Adjudi .....

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barred by limitation - appeal allowed - decided in favor of Revenue. - Central Excise Appeal No. - 312 of 2009 - Dated:- 21-8-2017 - Mr. Pankaj Mithal And Mr. Umesh Chandra Tripathi, JJ. For The Appellant : Praveen Kumar,S.C. For The Respondent : R.R.Kapoor ORDER Heard Sri Praveen Kumar, learned counsel for the appellant and Sri Shashi Matthews along with Sri Rishi Raj Kapoor, learned counsel appearing for the respondent. The order impugned in this appeal is that of the Customs, Excise and Servi .....

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d, 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 category in which the services as rendered by the respondent would fall ordered to reduce the penalty. The CESTAT by the impugned order has upheld the order of the Commissioner (Appeals) on merits, but opined that the demand of tax by treating the period of limitation to be five years is bad in law. In .....

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fact and as such, is beyond the scope of Section 35G of the Central Excise Act, 1944. In this connection, he has placed reliance upon certain authorities as well. In Kushal Fertilisers v. CCE, Meerut, 2009 (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 .....

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e services provided by the respondent would fall. The Commissioner (Appeals) and the Adjudicating Authority have clearly held that the respondent was rendering services of the nature which were amenable to tax under the Act. The respondent had not even applied for its registration under the Act nor had filed any return. Thus, it is clear that there was omission or failure on the part of the respondent to file return as contemplated u/s 70 of the Act. This finding of fact has not been turned down .....

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withstanding 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 of Central Excise has in consequence of information in his possession, reason to believe that the value of any taxable service assessable in any prescribed period has escaped assessment or has been under-assessed or service tax has been paid or has been short-paid or any sum has erroneously been re .....

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years of the relevant date serve notice on the assessee chargeable with the service tax which has escaped assessment as to why he should not pay the amount specified in the notice. A simple reading of 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 re .....

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that there was no suppression of facts so as to invoke the extended jurisdiction. The question of invoking the extended jurisdiction does not arise inasmuch as the period of limitation prescribed for issuing notice u/s 70 of the Act in the event of failure to file return is clearly five years. Accordingly, we hold that the CESTAT was not justified in holding that the demand was time barred except for that of preceding one year. In view of aforesaid facts and circumstances, the question is answer .....

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