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2023 (4) TMI 435 - AT - Service TaxLevy of Service tax - business support service (BSS) - online information and database access or retrieval service (OIDARS) - fees received by the appellant from banks/financial institutions for registration of transactions of securitization, asset reconstruction and security deposits - it is contended that service tax cannot be proposed and confirmed under two different heads of service for one single activity - extended period of limitation. Extended Period of Limitation - wilful suppression of facts with an intent to evade payment of service tax, or not - appellant is Government company - rebuttal of presumption - HELD THAT:- It is correct that section 73 (1) of the Finance Act does not mention that suppression of facts has to be “wilful’ since “wilful’ precedes only misstatement. It has, therefore, to be seen whether even in the absence of the expression “wilful” before “suppression of facts” under section 73(1) of the Finance Act, suppression of facts has still to be willful and with an intent to evade payment of service tax. The Supreme Court and the Delhi High Court have held that suppression of facts has to be “wilful’ and there should also be an intent to evade payment of service tax. In PUSHPAM PHARMACEUTICALS COMPANY VERSUS COLLECTOR OF C. EX., BOMBAY [1995 (3) TMI 100 - SUPREME COURT], the Supreme Court examined whether the Department was justified in initiating proceedings for short levy after the expiry of the normal period of six months by invoking the proviso to section 11A of the Excise Act. The proviso to section 11A of the Excise Act carved out an exception to the provisions that permitted the Department to reopen proceedings if the levy was short within six months of the relevant date and permitted the Authority to exercise this power within five years from the relevant date under the circumstances mentioned in the proviso, one of which was suppression of facts. It is in this context that the Supreme Court observed that since “suppression of facts’ has been used in the company of strong words such as fraud, collusion, or wilful default, suppression of facts must be deliberate and with an intent to escape payment of duty. This issue was examined by a Division Bench of the Tribunal in M/S. KRISHI UPAJ MANDI SAMITI AND OTHERS VERSUS CCE & ST, JAIPUR I & JAIPUR II [2017 (5) TMI 1465 - CESTAT NEW DELHI]. It was held that since Krishi Upaj Mandi Samiti was a government organisation and its functions were regulated by the Act and the Rules made thereunder, there will be a rebuttable presumption regarding non-existence of any of the ingredients mentioned in the proviso to section 73(1) of the Finance Act. The show cause notice merely alleges that by not disclosing the entire facts in the ST3 returns, the assessee had an intention to evade payment of service tax and this is what has also been recorded by the Commissioner while adjudicating the show cause. The appellant is a government company and, therefore, there is a rebuttable presumption regarding non-existence of any of the ingredients mentioned in the proviso to section 73(1) of the Finance Act. The show cause notice does not rebut the presumption - In such circumstances, the extended period of limitation could not have been invoked. As the entire demand that has been confirmed is for the extended period of limitation, the order confirming the demand cannot be sustained. Demand of service tax on the fees received from banks/financial institutions for registration of transactions under the category of ‘BSS’ and also ‘OIDARS’ - HELD THAT:- A Division Bench of the Tribunal in M/S ESS GEE REAL ESTATE DEVELOPERS PVT. LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE [2019 (6) TMI 633 - CESTAT NEW DELHI], after placing reliance upon the decision of the Tribunal in M/S. CMS (INDIA) OPERATIONS & MAINTENANCE CO. (P) LTD. VERSUS CCE, PUDUCHERRY [2017 (2) TMI 65 - CESTAT CHENNAI], observed that It is very difficult to really cull out from the show cause notice as to which particular category of service was intended to be taxed. The show cause notice should have clearly indicated whether the service of “real estate agent” or “site formation” was leviable to tax, for this is the requirement of section 65A of the Act. This confusion is maintained in the impugned order. The impugned order cannot be sustained - Appeal allowed.
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