TMI Blog2022 (2) TMI 1076X X X X Extracts X X X X X X X X Extracts X X X X ..... period. This itself shows that the appellant has suppressed the fact. It is also observed that the appellant have discharged the Service Tax only when the issue was raised by the audit party at the end of service recipient M/s Balas Industry. The audit report was issued on 16/09/2014 and on this basis only the appellant has paid the amount on 14/10/2016 and 15/10/2016. The appellant has neither taken any registration nor paid the Service Tax for the last 5 years. Therefore, there is a clear suppression of fact on the part of the appellant. Sub-section (4) of the section 73 clearly provides that where nonpayment of Service Tax is due to suppression of fact, misstatement, fraud, collision, etc the case cannot be concluded under section 73 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submits that in view of aforesaid sections, neither any show cause notice was to be issued by the department nor any penalty should have been imposed. 3. Shri RP Parekh, learned Superintendent (Authorised Representative) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that the demand is pertaining for the period 2011-2012 to 2014-15 which is under extended period, on the basis that there is a suppression of facts on the part of the appellant for not taking the Service Tax registration and not complying the procedure and payment of Service Tax on due date. He submits that the appellant have discharged the Service Tax only when the audit has pointed out about the non-payment of Service Tax. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een short-levied or short-paid or erroneously refunded by reason of - (a) fraud; or (b) 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 thereunder with intent to evade payment of service tax, by the person chargeable with the service tax or his agent, the provisions of this subsection shall have effect, as if, for the words thirty months , 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 thirty months or five years, as the case may be. (1A) Notwithsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under the proviso to sub-section (1) is not sustainable for the reason that the charge of,- (a) fraud; or (b) collusion; or (c) willful misstatement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or therules made thereunder with intent to evade payment of service tax, has not been established against the person chargeable with the service tax, to whom the notice was issued, the Central Excise Officer shall determine the service tax payable by such person for the period of thirty months, as if the notice was issued for the offences for which limitation of thirty months applies under sub-section (1) (3) Where any service tax has not been levied or paid or has been short-levied or short-paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der any of the provisions of this Act or the rules made thereunder shall be imposed in respect of payment of service tax under this sub-section and interest thereon. (4) Nothing contained in sub-section (3) shall apply to a case where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of - (a) fraud; or (b) collusion; or (c) wilfulmis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax. 4(A) [* * * *] (4B) The Central Excise Officer shall determine the amount of service tax due under sub-section (2)- (a) wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the above section 73(3), it is clear that assessee is required to inform the department about their intention to avail the benefit of section 73(3) in writing. In the present case, the appellant has not informed the department that they wish to avail the benefit of section 73(3). Moreover, the demand was raised for the period 2011-12 to 2014-15 by invoking the extended period. This itself shows that the appellant has suppressed the fact. It is also observed that the appellant have discharged the Service Tax only when the issue was raised by the audit party at the end of service recipient M/s Balas Industry. The audit report was issued on 16/09/2014 and on this basis only the appellant has paid the amount on 14/10/2016 and 15/10/2016. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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