TMI Blog2022 (7) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... ilful misstatement or wilful suppression. Therefore, the tribunal was fully justified in holding that the extended period of limitation could not have been invoked. What is important to note is that the amount of legible Cenvat credit to the assessee was Rs.41,17,269/- whereas the demand which was impugned before the tribunal fastened a liability of Rs.3,29,07,268/- which is not legally sustainable. The substantial questions of law are answered against the revenue - Appeal dismissed - decided against Revenue. - CEXA/11/2022 IA NO:GA/1/2022 - - - Dated:- 13-7-2022 - HON BLE MR. JUSTICE T.S. SIVAGNANAM AND HON BLE MR. JUSTICE BIVAS PATTANAYAK Appearance: Mr. Kaushik Dey. Adv. Mr. Tapan Bhanja, Adv. ...for the appellant. Mr. Ankit Kanoria, Adv. Ms. Megha Agarwal, Adv. .for respondent. (Judgment of the Court was delivered by T.S. Sivagnanam, J.) 1. This appeal filed by the appellant/revenue under Section 35G(1) of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 is directed against the order dated 9 th November, 2021 passed by the Learned Customs, Excise and Service Tax Appellate Tribunal, Kolkata (CESTAT) in service tax app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value of the exempted services or pay an amount equivalent to the Cenvat Credit attributable to inputs and input services used in or in relation to the manufacture of exempted goods or for provision of exempted service. Further, it was pointed out that under the said scheme, the assessee has to intimate in writing, to the Superintendent of Central Excise and pay provisionally for every month under Rule 6(3A) of the said Rules. 5. The assessing officer pointed out that the assessee is not maintaining separate account/register for receipt and use of input/input services as required under Rule 6(2) and, as such, they are under obligation to pay an amount at the rate of 6 per cent of the value of the exempted services. The assessing officer, to justify the invocation of the extended period of limitation as per proviso to Section 73(1)of the Act, stated that the non-payment of service tax would been undetected unless investigation was initiated and the assessee has not disclosed any material fact to the department s officer who checked the documents of the assessee during investigation and, therefore, opined that the assessee had made a wilful mistake with an intent to evade payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir reply on the merits of the matter stating that they are engaged in the business of trading of goods for M/s. Titan Industries from many show rooms in Kolkata. However, the assessee provided repair services only from two of such units namely, Mani Square and Avani Mall and hence, if at all the trading turn-over of the noticee has to be taken into account, it cannot go beyond the turn-over of the above two units and the department has mechanically taken the entire sales turn-over of the assessee as reflected in the balance sheet and calculated the value for trading turn-over based on such figures of all units from where the assessee does not provide any sort of taxable services. That apart, the assessee also questioned the jurisdiction of the assessing officer to invoke Rule 6(2) of the Act. Certain decisions of the High Courts were relied on this aspect. 7. The appellant, while adjudicating the show cause notice, did not agree submissions made by the assessee and rejected the contention that the show cause notice could not have been issued after the final audit report came to be passed. Ultimately, the proposal in the show cause notice was affirmed. Challenging the said orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement or suppression of fact which means with an intent to evade duty. Bearing in mind the above legal principle, if we examine the allegations in the show cause notice dated 17 th October, 2016, we find that there is no specific allegation or prima facie finding of any wilful misstatement or suppression on the part of the assessee. That apart, the details have been culled out by the adjudicating authority from the available records and there is no new or fresh tangible materials available in the hands of the adjudicating authority to make out a case of wilful misstatement or wilful suppression. Therefore, the tribunal was fully justified in holding that the extended period of limitation could not have been invoked. 12. The issue as to whether the adjudicating authority could have mechanically applied the 6% rule on the assessee, was considered in the case of Tiara Advertising vs. Union of India 2019 (30) G.S.T.L. 474 (Telangana) and it was held as follows: 14. Further, we may reiterate that Rule 6(3) of the Cenvat Credit Rules, 2004, merely offers options to an output service provider who does not maintain separate accounts in relation to receipt, consumption and i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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