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TaxTMI 
TaxTMI 
TaxTMI 
2018 (9) TMI 262
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....017. 2. The above appeal is admitted on the following substantial question of law : "In the facts and circumstances of the case, in the absence of documentary evidence to show that the assessee had acted in bona fide belief and in the light of evidence of his non registration, non payment and non filing of returns, which were statutorily required to be complied, whether the Tribunal was justified in holding that there was no suppression of facts and that the issue of show cause notice was hit by limitation?" 3. The Department issued the show cause notice dated 19.10.2012 stating that the respondent assessee received commission for promoting, marketing and selling the goods produced by M/s.Herbalife International India Priva....
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....cess should not be demanded from him under the Proviso to Section 73(1) of the Finance Act, 1994 for the period from 2007-08 to 2011-12; as to why the amount paid by him on 16.8.2012 should not be appropriated towards the demand of service tax; as to why interest applicable should not be demanded; and as to why penalty should not be imposed. 7. The assessee filed his reply, which was rejected and the proposals made in the show cause notice were confirmed vide the Order-in-Original dated 17.10.2014. Aggrieved by the same, the assessee preferred an appeal before the Commissioner of Central Excise (Appeals). The First Appellate Authority, by order dated 30.6.2016, rejected the appeal, against which, the assessee preferred an appeal before the....
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....rectness of the order passed by the First Appellate Authority, referred to the decision of their New Delhi Bench in the case of Charanjeet Singh Khanuja Vs. CST, Indore [reported in (2016) 68 Taxmann.com 60] and held that if two findings are possible, the longer period of limitation under the Proviso to Section 11A(1) cannot be invoked. There is no dispute with regard to the fact that the decision in Charanjeet Singh Khanuja has attained finality and that the Department has not preferred any appeal against the said decision. 13. The law on the subject as to whether the extended period of limitation could have been invoked when there were two views within the Department itself i.e. when certain Original Authorities hold that the services ar....
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....r Bench judgment. It is, therefore, clear that there was scope for entertaining doubt about the view to be taken. The Tribunal apparently has not considered these aspects correctly. Contrary to the factual position, the CEGAT has held that no plea was taken about there being no intention to evade payment of duty as the same was to be reimbursed by the buyer. In fact such a plea was clearly taken. The factual scenario clearly goes to show that there was scope for entertaining doubt, and taking a particular stand which rules out application of Section 11A of the Act. 12. As far as fraud and collusion are concerned, it is evident that the intent to evade duty is built into these very words. So far as mis-statement or suppression of facts are....
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....ctivity of the assessee was taxable under Section 65(105) (zzb) read with Section 65(19) of the Finance Act, 1994, there was no scope for doubt. Thus, it held that when there is scope for doubt in the mind of the assessee on a particular issue, the longer period under the Proviso to Section 11A of the Central Excise Act, 1944 cannot be invoked. 15. The operative portion of the order in the decision in Charanjeet Singh Khanuja reads as follows : "Another plea raised in these appeals is regarding limitation. It is the contention of the assessees that there was absolutely no suppression or mis-statement of facts or deliberate contravention of the provisions of the Finance Act, 1994 or of the Rules made thereunder with intent to evade paymen....
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.... Foundation Joint Venture Vs. CCE [(2007) Taxmann.com 532], when there is scope for doubt in the mind of an assessee on a particular issue, the longer limitation period under Proviso to Section 11A(1) cannot be invoked and in our view, the ratio of this judgment of the Apex Court is applicable to the facts of these cases. Therefore, the longer limitation period of five years under Proviso to Section 73(1) of the Finance Act, 1994 would not be invocable and duty can be demanded for normal limitation period of one year from the relevant date." 16. In the impugned order, the Tribunal had followed the decision in Charanjeet Singh Khanuja, which has attained finality. The Revenue does not dispute the fact that there were two views on the issue ....