"13willful concealment by the Noticee with intent to evade payment of Service tax. TheNoticee places reliance on following decisions:? The Hon’ble Supreme Court in the case of Anand Nishikawa Co. Ltd v. CCE,Meerut 2005 (188) ELT 149 (SC) observed as follows:“We find that ‘suppression of facts’ can have only one meaning that thecorrect information was not disclosed deliberately to evade payment ofduty, when facts were known to both the parties, the omission by oneto do what he might havell done not that he must have done would notrender it suppression. It is settlled law that mere failure to declare doesnot amount to willful suppression. There must be some positive actfrom the side of the assessee to find willful suppression.”? The Hon’ble CESTAT in the case of CCE, Pune v. Telco Ltd 2006 (196) ELT 308,has held that no penalty is imposable in the circumstances where the issue relatesto interpretation of law:“As regards penalty, we see force in the submission of the respondentsthat since the issue is entirely one of interpretation of law, it is not a fitcase for imposition of penalty, and therefore, reject the prayer of theRevenue for restoration of the penalty imposed upon them by theAdjudicating Authority.”? The Hon’ble Supreme Court in the case of Continental Foundation Jt. Venture v.CCE, Chandigarh 2007 (216) ELT 177 (SC), held as follows:“The expression “suppression” has been used in the proviso to Section11A of the Act accompanied by very strong words as ‘fraud’ or“collusion” and, therefore, has to be construed strictly. Mere omission 14to give correct information is not suppression of facts unless it wasdeliberate to stop the payment of duty. Suppression means failure todisclose full information with the intent to evade payment of duty.When the facts are known to both the parties, omission by one party todo what he might have done would not render it suppression. Whenthe Revenue invokes the extended period of limitation under Section11A the burden is cast upon it to prove suppression of fact. Anincorrect statement cannot be equated with a willful misstatement.The latter implies making of an incorrect statement with theknowledge that the statement was not correct.” 2.4 It is submitted that the Noticee had recorded all transactions in books and supportingdocuments were made available to the investigation team, though those documentspertained to very old period. Further, this proves beyond a reasonable doubt thatthere was never an intention to evade the payment of Service tax. 2.5 The Noticee did not commit any positive act to suppress information from thedepartment. There was no mala fide on the part of the Noticee and neither has thedepartment proved any positive act of suppression etc. which was committed by theNoticee. In the absence of any evidence to that effect, the SCN has incorrectly appliedextended period of limitation. The Noticee places reliance on the decision of theHon’ble CESTAT in the case of CCE v. Fluid Synthetic Incorporation 2007 (5) STR442 wherein it was held as follows:“5. … It is well stated law that it is not only the fact of mis-statementimplication which can be made the basis for invocation of longerperiod of limitation but the mis-statement must be with intention toevade payment of duty. If there would have been any intention on part 15of the assessee to suppress the use of brand name on their products,they would not have reflected the same in the invoices filed with theDepartment. As such, the element of mala fide intention is definitelymissing.”2.6 It is submitted that Section 11A of the Central Excise Act 1944 is similar to Section 73of the Act. In this regard reliance is placed on the following judgment:? The Hon’ble Supreme Court in the case of CCE v. HMM Limited 1995 (76) ELT497 has held that limitation for extended period not invocable unless and untilshow cause notice puts assessee to notice specifically as to which of the variouscommissions or omissions stated in the proviso to Section 11A(1) of CentralExcises & Salt Act, 1944 had been committed. Relevant part of the judgment isreproduced as under:“2. There is no dispute that the show cause notice cannot besustained under sub-section (1) of Section 11A unless the proviso isattracted. Admittedly, it is beyond the period of limitation of sixmonths prescribed under Section 11A(1) but it is within the extendedperiod of 5 years under the proviso to that sub-section. Now in order toattract the proviso it must be shown that the excise duty escapedpayment by reason of fraud, collusion or wilfulmis-statement orsuppression of fact or contravention of any provision of the Act or ofthe Rules made thereunder with intent to evade payment of duty. Inthat case the period of six months would stand extended to 5 years asprovided by the said proviso. Therefore, in order to attract the provisoto Section 11A(1) it must be alleged in the show cause notice that theduty of excise had not been levied or paid by reason of fraud, collusion "