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TMI Blog2023 (6) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... on 77 and Penalty of Rs. 3,04,00,376/- under Section 78 of Finance Act, 1994. Being aggrieved by the said order in original the appellant filed the present appeal. 2. Shri Jigar Shah, Learned Counsel appearing on behalf of the appellant submits that the service tax itself was not payable on the leasing of the land of Kandla Port Trust for the reason that the oil companies to whom the bills were raised were having unauthorized occupation of the land as the lease contract was expired. Therefore, without contract service cannot be chargeable to tax. He further submits that the appellant have not raised the bills for lease rent, whereas it was raised for compensation against the unauthorized occupation of land by the oil companies. The compens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax. The appellant have admittedly paid the service tax without raising any protest. It is for this reason the Revenue has not demanded the service tax under Section 73 (1) of Finance Act, 1994. As regard the issue whether the interest is recoverable and penalty was rightly imposed or otherwise, we find that the show cause notice for recovery of interest and imposition of penalties was issued much after the normal period of limitation. It is undisputed fact that or malafide intention on the part of the appellant particularly being a trust of Government of India. Therefore, the invocation of the extended period is not legal and proper. The show cause notice was issued under the extended period is clearly time barred. As regard the penalty th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute was clubbed together with turnover of Item 14E, then it exceeded Rs. 5 lakhs and the goods became liable to duty. The Department invoked extended period of limitation of five years as according to it the duty was short levied due to suppression of the fact that if the turnover was clubbed then it exceeded Rupees Five lakhs. 3.Law about excisability of exempted goods was settled by this Court in Wallace Flour Mills Co. Ltd. v. Collector of Central Excise, Bombay, Division III - 1989 (44) E.L.T. 598 (SC) = (1989) 4 SCC 592. Till then conflicting decisions were rendered by different High Courts and Tribunal and it was not settled whether the turnovers of assessable and exempted goods were liable to be clubbed for determining liability. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression. 5. In the result this appeal succeeds and is allowed. The matter is remitted back to the Authority for determining the turnover of the assessee in respect of only that period which is within six months from the date of issue of show cause notice. 4.1 In view of the above judgments the show cause notice being time barred the impugned order is not sustainable. As we stated above since the show cause notice has not raised the demand of service tax which appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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