The extended period of limitation under Section 73(1) of the Finance Act, 1994 can only be invoked with allegations of fraud, collusion, wilful mis-statement, suppression of facts, or contravention of the provisions of the Act with intent to evade payment of service tax.

JUDGMENT

T.S.Sivagnanam, J. - We have heard Mr. K.K. Maity, learned Senior Standing Counsel for the appellant and Mr. J.K. Mittal, learned Counsel assisted by Mr. Paritosh Sinha, Mr. Amitava Mitra, and Ms. Antara Choudhury, learned Advocates for the respondent.

2. There is a delay of 546 days in filing the application. We have perused the affidavit filed in support of the said application and we find that sufficient cause has been shown for not being able to file the application within the period of limitation.

3. Accordingly, the application for condonation of delay being IA No. GA/1/2013 is allowed and the delay in filing the application is condoned.

4. This appeal by the revenue is directed against the order in WP No. 124 of 2011 dated 10.08.2011. The said writ petition was filed by the respondent challenging a show cause notice issued by the appellant department dated 30.03.2010 demanding service tax for the period 2004-2005. By the impugned order, the writ petition has been allowed and aggrieved by such order the appellant department has filed the instant appeal.

5. We have elaborately heard Mr. K.K. Maity, Learned Senior Standing Counsel for the appellant department and Mr. J. K. Mittal, Learned Counsel assisted by Mr. Paritosh Sinha, Mr. Amitava Mitra, and Ms. Antara Chowdhury, learned advocates for the respondent.

6. The show cause notice which was impugned in the writ petition demanded a total service tax of Rs. 1,10,08,867/-. The break up details of the same are under three heads:- (i) Rendering of service to M/s. Tisco for getting coal converted to coke, (ii) intra court transportation of ores in terms of agreements with M/s. PM International Logistics Limited, subsidiary of Tisco and (iii) processing of Pyroxenite for M/s. Tisco. The show cause notice was issued invoking the extended period of limitation as provided under Section 73(1) of the Finance Act, 1994. In terms of Sub-Section 1 of Section 73 where any service tax has not been levied or paid or has been short- levied or short-paid or erroneously refunded, the Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. The proviso states that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reasons of (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of the said Chapter or of the rules made thereunder with intent to evade payment of service tax, by the persons chargeable with service tax or his agent, the provisions of Sub-Section 1 of Section 73 shall have effect, as if, for the words 'one year', the words 'five years' has been substituted. The explanation states where the service of notice is stayed by an order of a Court, the period of such stay shall be excluded in computing the aforesaid period of one year or five years as the case may be.

7. The respondent writ petitioner at the outset contended that the show cause notice is barred by time in view of Section 73(1) of the Act and the extended period of limitation as provided for in the proviso to Section 73(1) could not have been invoked as the ingredients were wholly absent.

8. The appellant revenue raised a preliminary objection with regard to the maintainability of the writ petition contending that the question whether the proviso to Section 73 (1) of the Act had been rightly or wrongly invoked involves factual determination and therefore the writ petition should not be entertained. The Learned Writ Court after noting the decision of the Hon'ble Supreme Court in Whirlpool Corporation Versus Registrar of Trade Marks, (1998) 8 SCC 1 opined that the Court would not be just