Case Law Details
Aviat Health Care Pvt. Ltd. Vs Commissioner of CGST (CESTAT Mumbai)
It is worthwhile to mention here that ‘trading’ is a pure sale which is subjected to the taxable jurisdiction of the provisional Government and no Service Tax liability accrues from pure sale un-associated with any service component as has been elaborately dealt by the Tribunal in the case of Medisary Laboratories P. Ltd. Vs. CCGST, Kolhapur vide final Order No. A/87803/2018 dated 01.11.2018. On this count also the demand would not survive.
Show Cause Notice after 5 years of Service Tax Return Filing is not valid and barred by Limitation
As found from the show-cause notice and even in the Order-in-Original there was no Service Tax liability shown in the table that pertains to financial year 2009-10, 2010-11, 2011-12, 2012-13 and the only Service Tax liability due against the appellant for the financial year 2008-09 against which last ST-3 return was filed on 22.04.2009. Show-cause notice been issued on 22.04.20014 is, therefore, barred by the period of limitation since issued one day after the stipulated period of 5 years is over which extended period can only be invocable under certain contingency primarily when appellant-assessee intended to evade payment of tax there was no intention shown in the documents available on record for the period 2012-13 & 2011-12 since Service Tax liability against appellant was shown as zero in the audit report for that period. It is not understood as to under what authority the Excise Officials had travelled beyond the period of 18 months to find out, if any Service Tax was due when they found no evidence of fraud, collusion, wilful misstatement, suppression of fact or contravention of the provision of the Finance Act or Rule within the statutorily prescribed 18 months. In my considered view the respondent-department can travel only backward from the current assessment to the past period and not like the audit people who usually move forward from the year last audit was closed up to the current assessment/ financial year. Be that as it may, show-cause notice issued after expiry of 5 years would be barred by limitation as held in the order of Hon’ble Supreme Court in CCE, Ahmedabad-I Vs. M. Square Chemical reported in 2008 (231) ELT 194 (SC) and Ilavia Enterprises Vs. CCE, Jaipur reported in 1997 (91) ELT 26 (SC). Therefore, the demand would not survive.
FULL TEXT OF THE CESTAT JUDGEMENT
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