2018 (12) TMI 264

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....of Service Tax. 2. Briefly the facts of the present case are that the appellants have Service Tax Registration and are engaged in the activity of providing various taxable services and paying Service Tax. During the course of scrutinizing the trial balance of the assessee, for the period 04/2005 to 09/2005, they have noticed that the appellant had received an amount of Rs. 4,42,547/- towards luggage collection, driver batta and casual contract and also received commission of Rs. 17,64,100/- towards hotel booking, luggage collection hotel booking, luggage collection, driver batta and casual contract during the period 2004-05. The amount so received is liable to Service Tax under category of 'tour operator/business auxiliary service' and t....

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....nd the law. He further submitted that the impugned order is contrary to the binding judicial precedent. He further submitted that the entire demand is barred by limitation. He further submitted that the Revenue has wrongly invoked the extended period of limitation of 5 years which can only be invoked in case of fraud, collusion, wilful mis-statement, suppression of facts or contravention of the provisions with intent to evade payment of Service Tax. It is his further submission that the appellant has not suppressed any information and has paid the Service Tax of Rs. 1,46,390/- on 25th March 2006 based on its calculation much before the issue of SCN which was issued on 16.01.2008. He further submitted that the Revenue has not brought any mat....

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....) wherein the Hon'ble High Court of Karnataka while interpreting Section 73 (1), has held as follows: "The proviso to Section 73(1) extends the period of limitation to 5 years in the event of fraud, collusion or wilful mis-statement or suppression of facts or contravention of any of the provisions or Rules made therein with intent to evade payment of Service Tax. This is an appeal by the Revenue, challenging the order passed by the Tribunal, which held that the demand of Service Tax made prior to the issue of SCN is beyond the period of one year and is clearly barred by time. In the facts of this case, it is clear that the assessee did not get themselves registered. It is their contention the service rendered by them is not amenabl....

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....icee to reply thereto effectively. Further, the learned counsel also submitted that on merit also, the appellants have paid the Service Tax which was liable to be paid much before the issue of SCN and the finding of the Commissioner that the appellants have paid the Service Tax on receipt of SCN is factually incorrect because the appellant has paid the Service Tax on 25th March 2006 promptly when it came to their knowledge through Audit Party that some of the services are liable to Service Tax whereas the SCN was issued on 16th January 2008 which is almost 2 years later from the date of payment of tax. 5. On the other hand, learned AR defended the impugned order. 6. After considering the submissions of both the parties and perusal of ....

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....ntinuing the evasion. Therefore, proviso to Section 73(1) is invocable for extending time. It prima facie appears to this Court that the reasons for invoking the extended period of limitation, as disclosed, are totally vague and devoid of material particulars. Prima facie, there is no whisper in the impugned notice of the facts which have allegedly been suppressed. Prima facie, the vague assertion that the petitioner had willfully suppressed facts pertaining to providing/receiving the services with intent to evade payment of Service Tax is unfounded. On a prima facie perusal of the impugned notice it prima facie appears to this Court that the Commissioner proceeded on the basis that there had been contravention, as a result of which, ....