TaxTMI 
TaxTMI 
2025 (8) TMI 75
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....25 of the Commissioner of Service Tax (Appeals-II), whereby the common orders in original No.76 & 77/2011 dated 18-08-2011 passed by the adjudicating authority confirming the demand of service tax along with interest thereon for the period April 2005 to September 2008 and for the subsequent period from October 2008 to September 2010, along with the penalties imposed under Section 78 of the Finance Act, 1994 for the former period and Section 76 for the latter period with penalties under Section 77 for both the periods, were also upheld. Inasmuch as the issue involved being common, these appeals were taken up for hearing together and are being disposed of by this common order. 2. Brief facts are that the appellant who is engaged in the bus....
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....further due to the general economic recession and outstanding dues from their regular clients they were unable to fulfil their service tax liability. They also submitted that they have paid an amount of Rs.21,80,993/- against the demand and were taking efforts to pay the balance amount of Rs.7,25,489/-. In response to the second show cause notice, also the appellant pleaded financial constraints. After due process of law, the adjudicating authority, while observing that the appellant has paid an amount of Rs.21,80,993/- vide challans dated 20.01.2010, 29.01.2009, 23.12.2008 and 24.05.2008 towards the demand of Rs.29,06,482 made under SCN dated 24.12.2009, went on to hold that since the appellant had not filed ST-3 returns nor intimated thei....
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.... tax. It was contended that the appellant had filed periodical returns disclosing the entire taxable value without any suppression. That the delay in payment was due to the resignation of the concerned officer and financial hardship faced by the appellant, that the demand was computed based on the exact value of service furnished by the appellant and hence the demand beyond the normal period is barred by limitation. He submitted that the penalty imposed under Section 78 with respect to the first SCN may be set aside. As regards the demand confirmed in respect of the second SCN he submitted that a portion of the demand is barred by limitation and hence the demand is unsustainable and that the penalties imposed are also unsustainable. Relianc....
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....at the assessee suppressed facts with an intent to evade payment of service tax." 8. Therefore, it is evident that there was no positive evidence of any wilful misstatement or suppression of facts with intent to evade payment of duty that has been put to the notice of the appellant and which the appellant has been called upon to answer. It is settled by a catena of decisions that absent such a positive or deliberate act on the part of the appellant, extended period of limitation cannot be invoked. The decisions in CCE & ST, Bangalore (Adjudication) v Northern Operating Systems Pvt Ltd, 2022 (61) GSTL 129 (SC) and Naresh Kumar & Co Pvt Ltd v UOI, 2015 (37) STR 451 (Cal) affirmed in appeal in Commissioner of Service Tax v Naresh Kumar & Co....
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....on 78 are the same as that required for invoking the extended period of limitation, in the absence of these ingredients, the penalty imposed on the appellant under Section 78 of the Act also cannot sustain. 9. As regards the demand upheld in the second show cause notice we find that the Department was well aware of the fact situation of the appellant when it issued the first SCN dated 24.12.2009. Therefore, it was incumbent upon the Department to have issued the notice for the subsequent period from October 2008 within the normal period of limitation prescribed under Section 73(1) of the Finance Act, 1994. We see that the notice for the period October 2008 to September 2010 was issued only on 17.02.2011. However, the appellate authority ....
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....y the service tax along with the interest due thereon only for the period from September 2009 to September 2010 in so far as the SCN dated 17.02.2011 is concerned. We find that the case laws relied upon by the appellant are those in which the assessee has either adhered in full to the mandate of the statutory provisions governing payments made before issuance of the show cause notice or that where the returns were filed as statutorily mandated, which fact circumstances are not akin to the case of the appellant herein. These case laws are of no avail to the appellant in this matter. 11. We also find no reason to interfere with the penalty imposed under Section 77 in respect of both the periods as upheld in the impugned OIA, which we find ....