M/S. Tushar Babulal Sonraj vs Commissioner Of Central Excise & S.T., ...
- CitationAppeal No. : ST/77/2008
Ratio decidendi
The rule this decision rests on
The extended period of limitation under the proviso to the service tax provisions cannot be invoked to demand tax where the assessee has not acted with deliberate suppression of facts or mala fide intent to evade the tax, and the service was only recently brought within the tax net so that ambiguity prevailed as to its taxability. Where the demand is held time-barred, the tax, interest and penalty founded on it fall together and cannot be sustained, and the Tribunal is bound to follow the jurisdictional High Court's decision on the point, here the decision of the Gujarat High Court in Commissioner of Service Tax vs. Vijay Travels.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of OIA-43/2008/COMMR-A-/RAJ dated 29.02.2008, passed by Commissioner (Appeals) Central Excise & Service Tax, Rajkot)
M/s. Tushar Babulal Sonraj : Appellant (s)
VERSUS
Commissioner of Central Excise & S.T., Rajkot : Respondent (s)
Represented by :
For Appellant (s) : Shri Kuntal Parikh, Advocate
For Respondent (s) : Shri Alok Srivastava, Authorised Representative
For approval and signature :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Hon'ble Member (Technical)
1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3 Whether their Lordships wish to see the fair copy of the Order?
Seen 4 Whether Order is to be circulated to the Departmental authorities?
Yes
CORAM :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Hon'ble Member (Technical)
Date of Hearing / Decision : 16.07.2015
ORDER No. A/11040 / 2015 Dated 16.07.2015
Per : Mr. P.K. Das;
After hearing both sides and on perusal of the records, we find that the demand was raised on Rent-a-Cab service for the period 2001-02 to 2004-05, by show cause notice dated 01.03.2006. The learned Advocate appearing on behalf of the appellant fairly submits that the issue on merits is against the appellant and the demand is liable to be set-aside on limitation. He placed the decision of the Hon'ble Gujarat High Court in the case of Commissioner of Service Tax vs. Vijay Travels 2014 (26) STR 513 (Guj.). The learned Authorised Representative on behalf of the Revenue submits that the appellant had not taken the registration and the extended period is correctly invoked.
2. We find that the Hon'ble Gujarat High Court, on identical issue upheld the demand of service tax on merits and set-aside the demand on limitation. The relevant portion of the decision of Hon'ble Gujarat High Court is reproduced below:-
24.?Tribunal, however, treated this issue academic in nature and rightly so as it held in favour of the assessee on earlier adjudged issues (Nos. I and II). It, of course, held that no intentional suppression or mala fide could be read into the action of the respondent assessee as this service has been recently brought under the tax net and much ambiguity was prevailing in respect of the same.
25.?We are in complete agreement with the Tribunal that invocation of extended period required deliberate act of suppression or mala fide or to the Revenue, the same is not available in the instant case. Respectfully following the decision of the Hon'ble Gujarat High Court in the case of Commissioner of Service Tax vs. Vijay Travels, we set-aside the demand of service tax alongwith interest and penalty as barred by limitation.
3. The appeal filed by the appellant is allowed.
(Dictated and pronounced in the Court)
(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial) ..KL
3
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