TMI Blog2023 (2) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... cover of the service tax amount, which have been short-levied or non-levied etc. On the contrary, invocation of the proviso clause contained in Sub-Section (1) of Section 73 ibid is the exception, which can be sparingly invoked, only in the eventuality, of fraud or collusion or wilful mis-statement or suppression of facts or contravention of any of the provisions of the Chapter V of the Finance Act, 1994 or rules made there under, with intent to evade payment of the service tax. In such eventuality, instead of the period of one year, the show cause notice can be issued by invoking the extended period of limitation within the period of five years from the relevant date. In this case, it is an admitted fact on record that based on the book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant herein is engaged in providing logistics support services to M/s. Tata Motors Ltd. Such services provided by the appellant are categorised as taxable service under the taxable head of Business Support Service , defined under Section 65 and 65A of the Finance Act, 1994. The scope of work assigned to the appellant by the recipient of service M/s. Tata Motors Ltd. was for the provision of service of supplying the vehicles manufactured by them to the customers from the storage yard. As per the terms of the work order, the service recipient deducts some amount from the invoices raised by the appellant on account of late delivery, accidental expenses, theft of the goods etc. During the disputed period, the appellant had discharged the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this context, he submitted that there is no element of fraud, collusion, wilful mis-statement or suppression of facts etc., and in such an eventuality, the show cause notice can only be issued, seeking for recovery of the service tax amount within the period of one year from the relevant date. Thus, he submitted that since the notice was issued by invoking the extended period of limitation, the same is not sustainable under the law for effecting recoveries. He has relied upon the impugned order, wherein the learned Commissioner (Appeals) has dropped the penalty imposed in the original order under Section 78 ibid. By referring to impugned order-in-appeal, he stated that since, Section 78 ibid dealing with the provisions of fraud, collusion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: PROVIDED that 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) 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 sub-section shall have effect, as if, for the words 1[one year], the words five years had been substituted. 7. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble service, the appellant had received lesser amount than that as shown in the invoices issued to the service recipient. Since, towards provision of the taxable service, the appellant had received the lesser amount, after adjustment of the aforementioned deductions, their tax liability is confined only to the amount, which was actually received for provision of the taxable service. Thus, under such circumstances, the charges of suppression etc. cannot be levelled against the appellant. Appreciating the facts and circumstances of the case, the learned Commissioner (Appeals) has also modified the adjudication order-in-original, in setting aside the penalty imposed under Section 73 ibid. Thus under such circumstances, we are of the considered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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