2019 (5) TMI 1104

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....pient of taxable service namely "Transport of Goods by Road Service". During the scrutiny of ST-3 return filed by the appellant for the period October, 2012 to March, 2013, it was observed that they had short paid service tax amounting to Rs. 1,09,945/-. Accordingly, a show cause notice dated 23.02.2015 was issued to them for demand of service tax amounting Rs. 1,09,945/- under Section 73(1) alongwith interest under Section 75of the Finance Act, 1994. Penalty under Section 76 of the Finance Act, 1994 was also proposed to be imposed. The Adjudicating Authority vide Order dated 02.07.2015 confirmed the demand of service tax of Rs. Rs. 1,09,945/- and ordered it to be recovered from the appellant alongwith interest and penalty. On Appeal, the l....

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.... appellant filed the revised return on 05.05.2015 that itself shows that there was suppression on the part of the appellant. 4. The Hon'ble Supreme Court in the matter of CCE v. Ballarpur Industries Ltd., (2007) 8 SCC 89 while interpreting the word "suppression" has held that the department was not entitled to invoke the extended period of limitation since there was no suppression and laid down as under:- "24. In Continental Foundation Joint Venture Holding v. CCE [(2007) 10 SCC 337] a show-cause notice under Section 11-A of the 1944 Act was issued to the assessee invoking extended period of limitation on the grounds of suppression, fraud and collusion. The Division Bench of this Court, to which one of us, Kapadia, J., was the m....

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....eby that the notice has been issued without there being any justification for invoking the extended period of limitation. Section 73 permits extended recovery for a period of upto five years in cases of fraud, collusion, wilful mis-statement, suppression of facts or contravention of the Finance Act or Rules with intent to evade payment of service tax. But for this purpose show cause notice must allege and state fraud, collusion, wilful mis-representation, suppression of facts, etc. It seems that in this matter the extended period of limitation has been invoked in a mechanical manner without adducing any proof/evidence to establish that provision of Section 73 ibid are attracted. There must be some positive act from the side of the assessee ....