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11.2 The Appellant also submitted that the expenses incurred by them in foreign exchange as well as the information about raising the GDR and FCCB were all reported in their annual financial statements for the year 2006-07 and 2007-08 which are public documents available on the public domain and hence the charge of wilful suppression of facts on this score cannot survive. Further the officers attached to the DGCEI were earlier seized of the matter and they had vide their letters dated 08.05.2007 and 04.07.2007 called for various information and documents relating to the foreign currency transaction relating to FCCB/GDR which they had promptly furnished vide their letter dated 24.08.2007 along with all documents as called for. On examination of the entire issue, they choose not to ST/40458/2014 proceed further as they were of the opinion that no case of loss of revenue was made out. Thus the officers of the DGCEI who are designated Central Excise Officers with all India jurisdiction were fully aware of all their transactions and in spite of the said fact the local officials of the Internal Audit and SIR once again raising the same issue while conducting audit of their accounts during 2008-09 have issued the impugned notice after four years of the examination of their records by the officers of DGGCEI and that too after they submitted their clarification which do not permit the invocation of the extended period of time. 11.3 It was further submitted that even if the tax was required to be paid by them, then they would be entitled to avail the same as input tax credit thus making it a revenue neutral situation which should render the invocation of the extended period of time unavailable. Furthermore, as the issue raised by the revenue only related to a pure question of law and does not rely upon any contumacious conduct on their part all the more the invocation of the extended time is not permissible.

11.5 All along the Appellant made impassioned pleas against the invocation of Proviso to Section 73(1) of the Finance Act 1994. We proceed to examine this issue in depth. We believe that the offer document for the public /Private issue of FCCB/GDR is a public document and for which vide publicity through Media has to be done in India and abroad and they have successfully raised the funds for CAPEX in India. Without the approval/consent of SEBI and RBI (Statutory Bodies), a public listed company cannot access funds abroad. We observe that upon completion or during the midst of the GDR/FCCB issue, the Appellant was visited by the Departmental officers DGCEI/AUDIT/SIR and regular correspondences were entered into between the various Departmental Authorities and the Appellant at ST/40458/2014 regular intervals. All the said correspondences form part of the Appeal paper book pages from 34 to 65 which is extracted below: -

Thus the above sequence of events happened when the company was raising funds through GDR/FCCB or just concluded the fund-raising process. The Department was in the knowledge of the issue during the period covered by the Demand itself, and in such a situation, attributing suppression of facts is not tenable. In such a situation, we do not find any evidence of Suppression /Fraud etc., to invoke the extended period under Proviso to Section 73(1) of FA 1994. The first visit by the Department was in 2007, but the ST/40458/2014 SCN came to be issued in 2011 only. It appears that to camouflage the belated issue of SCN, the Department had to invoke the proviso to Section 73(1) to keep the demand alive. From the above facts, we are of the view that the demand should have been issued under normal period in terms of Section 73 of Finance Act, 1994. The Appellant has argued that the department has compiled the SCN based on figures furnished by the Appellant voluntarily when asked for. The Tax, if paid, will be available to the appellant as CENVAT Credit and the entire issue of Service Tax levy on MBS is revenue neutral to the Appellant. We also note that the Audit of the Appellant Company was also conducted for the period 2004-05 to 2007-08 and certain discrepancies were communicated. The Audit Commenced on 9th June 2008 (Page 47) of paper book. In such a situation, the facts are deemed to have been known to the Department and the theory of Suppression is ruled out. It is a genuine interpretational issue on classification of services and point of delivery of service and it has been held in a plethora of Decisions by Tribunals /Courts that extended period cannot be invoked in such a situation.