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2016 (7) TMI 92 - AT - Service TaxValuation - transportation of passengers by air service - inclusion of fuel and insurance surcharge as well as on passenger service fee and airport tax - suppression of facts - extended period of limitation - Held that:- it is clear that the airlines association has taken up the issue of fuel and insurance surcharge with the CBEC which issued the clarification. In the circumstances, it is totally untenable to even allege suppression/ wilful mis-statement with regard to service tax demand pertaining to fuel surcharge. We have perused the Show Cause Notice also and find that the allegation of wilful suppression of taxable value has been made essentially on the ground that the appellant did not include the fuel surcharge, PSF and airport taxes in the assessable value and failed to file correct ST-3 returns (meaning that the assessable value shown in the ST-3 returns did not include the PSF and airport taxes and fuel and insurance surcharge). The Show Cause Notice does not even remotely bring out as to how it was a wilful act to evade service tax and the airline was aware that the same were includible in the assessable value. Mere omission to give correct information is not suppression of facts unless it was deliberate and that an incorrect statement cannot always be equated with wilful mis-statement. Thus, the ingredients required for imposing penalty under Section 78 ibid are conspicuously absent in this case. Demand pertaining to passenger service fee and airport taxes is set aside and the penalty under Section 78 ibid is also set aside. - Decided partly in favor of asessee.
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