TMI Blog2020 (4) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... heet. Thus, the extended period of limitation could not have been invoked - The matter would have to be remanded to the Adjudicating Authority to re-determine the amount of Service Tax for the normal period. The imposition of penalty was also set aside as there was no malafide on the part of the Appellant. The submissions of learned Counsel for the Appellant that trading activity would not be a service after 1 July 2012 is an issue which can also be examined by the Commissioner - Appeal allowed by way of remand. - Service Tax Appeal No. 51889 of 2015 - Final Order No.: 51578/2019 - Dated:- 13-11-2019 - HON BLE MR.JUSTICE DILIP GUPTA, PRESIDENT AND HON BLE MR. BIJAY KUMAR, MEMBER (TECHNICAL) Mr. A.K. Prasad, Ms. Surbhi Sinha, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the noticee have evaded payment of service tax amounting ₹ 1,13,27,270/- during the period of 2009-10 to 2012-13 by not paying and amount equivalent to 6% /5% on the value of exempted services, as no separate account for input services credit were maintained for exempted as well as taxable services. xxxx xxxx xxxx Now, I proceed to examine whether the noticee are required to pay an amount as per provisions of Rule 6 of Cenvat Credit Rules 2004 in respect of exempted services. The provisions of Rule 6 of Cenvat Credit Rules 2004 are applicable where both exempted goods and dutiableable goods are manufactured or exempted services and taxable services are provided. xxxx xxxx xxxx Now, I proceed to examine whether the notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t period) of trading value as the noticee s case is clearly covered under the said rule 6 of the Cenvat Credit Rules 2004. Further regarding calculation of payable amount of 5% or 6% the value has taken as 10% of the cost of goods sold and accordingly amount not paid by the noticee has rightly been calculated in the SCN. 4. The contention of the Appellant that the extended period of limitation could not have been invoked was rejected. Penalty under Section 78 of the Finance Act 1994, the Act was also imposed. 5. Shri A.K. Prasad learned Counsel appearing for the Appellant states that he is not contesting the issue on merits for the period prior to 1 July 2012, but the extended period of limitation could not have been invoked and for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied out and the amount had been reflected in the Books of Account and the balance sheet. 9. This issue regarding invocation of extended period of limitation was examined by a Division Bench of the Tribunal in M/s Balaji Industrial Products Ltd. The relevant portion of the order is as follows: However, we find that admittedly the Appellant was recording the entire activity in their balance sheet which is a proper document. As such according to the settled law, it cannot be said that the Appellant suppressed anything with a malafide intention. Apart from that, we also agree with the learned advocate that there was confusion in the field and as per various decisions, trading activity was not considered to be an exempted service prio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner. The imposition of penalty was also set aside as there was no malafide on the part of the Appellant. We see no good reason to take a different view. 12. Reliance placed by the Authorised Representative of the Department on the decision of the Supreme Court in Gujrat Travancore Agency is misplaced in view of the provision of the Section 78 of the Act. The Supreme Court in Gujrat Travancore Agency observed that the language of the statute has to be examined and unless there is something in the language indicating the need to establish the element of mens rea, a default in complying with the statute would have occurred. 13. The submissions of learned Counsel for the Appellant that trading activity would not be a service af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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