TMI Blog2019 (7) TMI 1481X X X X Extracts X X X X X X X X Extracts X X X X ..... action. The Commissioner (Appeals) has rightly concluded that the activities of the appellant were well within the knowledge of the Revenue, therefore, no question of suppression of any fact. The finding of the Commissioner (Appeals) in our considered opinion is quite apposite - From the record nothing is forthcoming so as to substantiate the action of the Revenue in sleeping over the matter for a period w.e.f. 2004 till 2006 and then on 27.03.2008 when show cause notice was issued. Show cause notice having been admittedly issued after the prescribed period of one year was clearly barred by limitation as rightly concluded by the Commissioner (Appeals). The order of learned Commissioner (Appeals) dated 03.12.2010 being well reasoned and logical is restored - Appeal allowed. - Central Excise Ap.No.18/2018 - - - Dated:- 30-4-2019 - MOHAMMAD YAQOOB MIR C. J. and H. S. THANGKHIEW J. R. Jha for the appellant. N. Mozika for the respondents. JUDGMENT Order dated 05.02.2018 passed by the Customs, Excise and Service Tax Appellate Tribunal, East Regional Bench, Kolkata (hereinafter for short referred to as CESTAT) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 has been issued calling upon the appellant to attend the office of the Commissioner of Central Excise and to produce the documents as per schedule i.e. (i) list of parties to whom he has supplied vehicles on hire; (ii) details of collections/payments received from such parties to whom he has supplied vehicles on hire basis; (iii) copies of agreement between the parties and the appellant and; (iv) trade license/registration certificates for the vehicles issued by the competent authority. 7. Appellant filed a detailed response to the said summon on 08.11.2006 with a request to drop the enquiry as initiated. One more summon dated 22.02.2007 has been issued under Section 14 of the Act of 1944 asking the appellant to produce in addition to other documents the copies of all returns filed with the Income Tax department for the year 2002-03, 2003-04, 2004-05 and 2005-06. The appellant has submitted the reply on 28.02.2007. Again on 22.03.2007, one more summon has been issued under Section 14 of the Act of 1944 asking the appellant to produce certain documents which he has responded on 09.04.2007. 8. Finally a show cause notice has been issued from the office of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not file the service tax returns. In view of the said position extended period is not invocable, only normal limitation of period prescribed under Section 73(1) of the Finance Act, 1994 would be available to the department for causing recovery of non-paid service tax. For the period from 2003-04 to October 2006, a show cause notice was issued on 27.03.2008 therefore, according to the Commissioner (Appeals) the entire demand is barred by limitation. It is further clear that the allegation of suppression with the intent to evade payment of duty is not sustainable, therefore, interest imposed under Section 75 of the Finance Act, 1994 and penalty imposed under Sections 76, 77 and 78 of the Act is also set aside. Finally, Commissioner (Appeals) has set aside the impugned order on the ground of limitation. 12. Aggrieved by the order of Commissioner (Appeals), Revenue filed an appeal before CESTAT successfully as learned Tribunal opined that in the grounds of appeal in response to the department s letter dated 16.03.2004, appellant had informed that he was neither the owner of any tourist vehicle nor a tour operator . The said reply according to the Tribunal has not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made there under with intent to evade payment of service tax, by the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as if, for the words one year , the words five years had been substituted. Explanation. - Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of one year or five years, as the case may be. 14. The period of unpaid service tax was from 2002-2004 when initial notice dated 16.03.2004 was issued by the Revenue (Superintendent, Service Tax). Then when summon was issued on 13.10.2006, the relevant period was shown from 2002-2006. Show cause notice has been issued on 27.03.2008 admittedly after the prescribed period of one year but within five years. The benefit of five years limitation is available only when the case falls within the scope of proviso. The adjudicating authority in the order-in-original has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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