2017 (11) TMI 159

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....sion for procuring order of the goods on behalf of the principals. The respondents were neither registered with the Service Tax department nor did they pay any Service Tax. Summon dated 17.06.2008 was issued. The assessee filed copies of the balance sheet for the financial year 2003-04 to 2007-08 and other documents in respect of commission agent. Show Cause Notice dated 28.08.2008 was issued proposing to demand Service Tax of Rs. 33,07,887/- along with interest and imposition of penalty for the period 2005-06 & 2006-07. The adjudicating authority confirmed the demand of Service Tax of Rs. 29,89,600/- along with interest and imposed equal penalty under section 78 and also imposed penalty of Rs. 1,000/- under section 77, Rs. 2,000/- for cont....

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.... "I find that the appellant is a BIFR Company; I therefore waive the requirement of pre-deposit of duty and penalty under Sec.35F of the Central Excise act, 1944 as made applicable in Service Tax matters by Section 83 of the said Act and proceed to dispose of the main appeal on merits. I have carefully gone through the case records. The short point to decide in this case as to whether the case is barred by limitation and also on the ground of revenue neutrality as claimed by the appellant since they were having the bona fide belief as services of commission agents have been exempted from service tax w.e.f. 1st July, 2003 vide notification No.13/2003-S.T. dated 20.06.2003. Commission agent has been defined in the notification, ....

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....3 S.T., dated 20.06.2003 has been amended vide Notification No.8/2004-S.T., dated 9.07.2004. The word Commission agents from the Service tax leviable thereon under Sub-section (2) of Section 66 of the said Act have been replaced by the words Commissioner agents in relation to sale or purchase of agricultural produce from the Service tax leviable thereon under Section 66 of the said Act. The effect of the amendment is to exempt from Service tax only the Commission agent engaged in relation to sale or purchase of agricultural produce and not all Commission agent as was the case prior to 9.07.2004. The appellant in grounds of appeal stated that it is wholly unjustified in invoking the extended period of limitation in as much as non-pa....

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....ax. In the judgement of Knit Foulds vs- cce [Ref:- (2008) 230 E.L.T. 442 (CESTAT)] it was held that if non-disclosure was due to lack of understanding of provisions of the notification, there was no intention of suppression and extended period for demanding duty is not available. Also in the judgment of ITW Signode India vs- CCE [Ref:- 158 E.L.T. 403 (S.C.-3 member bench) it was held that extended period of limitation can be invoked only on a positive act of fraud etc. Such a positive act must be in contra-distinction to mere inaction like non-taking of license etc. It has to be pleaded and established. Same view expressed in the judgment of Fermenta Pharma Blodil [Ref:- (2009) 234 E.L.T. 609 (HP.HC.DB). However suppression means not provid....