TMI Blog2019 (1) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants - extended period cannot be invoked, more so, as the appellants were regularly filing ST-3 returns and have been discharging duty as per their understanding. SCN do not survive of limitation - impugned order is deserved to be set aside as far as the demand beyond normal period is concerned - the impugned order is modified to the extent that the demand of service tax is restricted to ₹ 95,905/-, which is to be appropriated from the deposit made by the appellants - appeal allowed in part. - ST/546/2009-DB - Final Order No. 21898/2018 - Dated:- 14-12-2018 - SHRI S.S GARG, JUDICIAL MEMBER And SHRI P. ANJANI KUMAR, TECHNICAL MEMBER Mr. H.S Ananatha Padmanabha Advocate For the Appellant Mrs. K. Podwal, Superint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registration vide letter dated 14.11.1998 informing them about their activity, procedure followed and difficulty in realizing the service tax from their customers. The appellants pleaded that since their customers are not paying service tax, they are not in a position to pay the same and precisely on this issue, they have sought a clarification. However, no clarification was given. Since the service was bread and butter of the appellants, they did not suspend the provision of service. It is pertinent to note that learned Commissioner himself sought such a clarification from CBEC vide letter 12.10.2006. The appellants contended that since Commissioner, though being a top Executive in the taxation department was not clear on the issue and sou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19,000/- on 4.2.2004 and 21.2.2004 respectively. As the issue is substantially barred by limitation and as there was no positive act of suppression on their part, penalty cannot be imposed. 3. The learned AR has reiterated the findings of the OIO. 4. Heard both sides and perused the records of the case. 4.1 The main contention of the appellant in this case is that they have paid service tax wherever the same was recovered from their customers and wherever, the customers refused to pay, they could not make payment of the same. They have claimed that they sought a clarification from the Commissioner on this practical difficultly well before obtaining registration itself. 4.2 We find that as contended by the appellant, they have vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t out of the total payments received and pay the same as service tax. This has been specifically provided under Section 67(2) of the Finance Act, 1994. 4.3 From the above, we find that the credentials of the appellant have been squarely established as the appellants have sought the clarification well before hand. If the learned Commissioner entertains such a doubt in 2006, the appellant being a common man has all the more reason to be ignorant about the provisions of law in 1998. It is on record that the department has not replied to the clarification sought by the appellants. Therefore, extended period cannot be invoked, more so, as the appellants were regularly filing ST-3 returns and have been discharging duty as per their understa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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