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2023 (7) TMI 199 - AT - Service TaxExtended period of limitation - wilful suppression of facts or not - whether the Commissioner was justified in holding that the extended period of limitation contemplated under section 73(1) of the Finance Act was correctly invoked in the facts and circumstances of the case? - 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 wilful 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 would also be useful to refer to a decision of the Tribunal in M/S. SHIV-VANI OIL & GAS EXPLORATION SERVICES LTD. VERSUS CST, NEW DELHI [2016 (10) TMI 878 - CESTAT NEW DELHI], wherein the Tribunal after making reference to the decision of the Supreme Court in COSMIC DYE CHEMICAL VERSUS COLLECTOR OF CENTRAL EXCISE, BOMBAY [1994 (9) TMI 86 - SUPREME COURT], observed that there should be an intent to evade payment of service tax if the extended period of limitation has to be invoked. Various factors have not been examined by the Commissioner in the impugned order and a conclusion has merely been drawn that because there was suppression of facts by the appellant, the suppression was with an intent to evade payment of service tax - impugned order holding that the extended period of limitation has been correctly invoked, therefore, cannot be sustained and is set aside - appeal allowed.
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