TMI Blog2014 (4) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not have been validly applied, acted outside its jurisdiction in entering upon the merits of the dispute on whether the demand for duty should be confirmed. Once it is held that the demand is time barred, there would be no occasion for the Tribunal to enquire into the merits of the issues raised by the Revenue. - Decided in favor of assessee. - Central Excise Appeal No. - 370 of 2013, Central Excise Appeal Defective No. - 33 of 2014 - - - Dated:- 27-3-2014 - Dr. Dhananjaya Yeshwant Chandrachud, CJ And Hon'ble Dilip Gupta,JJ. For the Appellant : Ashok Singh For the Respondent : Ashok Singh, Sr. S. C. ORDER Two appeals have been filed against a judgment and order of the Customs, Excise and Service Tax Appellate Tribunal dated 7 June 2013. The first appeal chronologically is by the Revenue, while the second appeal is by the assessee. The Tribunal held that the extended period of limitation of five years could not have been invoked by the Revenue under Section 73 of the Finance Act, 1994 on the ground that there was no suppression of facts by the assessee. Having held that the demand beyond a period of one year was time barred, the Tribunal entered upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd a reimbursement for clearing and forwarding agent expenses at a stipulated rate. The assessee was called upon to show cause as to why it should not be required to pay service tax amounting to Rs.9,46,766/- computed on rent charges received from HLL for cold storage/warehousing of frozen products. An order of adjudication was passed by the Assessing Officer by which the demand for duty was confirmed together with interest and a penalty of Rs.200 per day was imposed till the deposit of the duty subject to a maximum of Rs.9,46,766/-. Penalties were also imposed on that amount to the extent of Rs.500/- under Section 75-A and Rs.1000/- under Section 77. The assessee carried the matter in appeal. The Commissioner (Appeals), by an order dated 24 September 2008, reduced the penalty from Rs.200 per day, which was subject to a ceiling of Rs.9.46 lacs, to Rs.2 lacs. The other two penalties were also reduced from Rs.500/- to Rs.200/- and from Rs.1000/- to Rs.500. The demand for duty was, however, confirmed. The Commissioner (Appeals) held that the extended period of limitation had been rightly invoked under Section 73(1) of the Finance Act, 1994. The assessee filed an appeal before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d charge towards cold storage, power cost and other relevant expenses and (2) Reimbursement @ 0.50 per ltr. Volume handled during the month as handling charges out of which you are paying service tax only on the Handling Charges. As per clause (J) to Section 65(72) of Finance Act 1994 (Ch. V) taxable service means any service provided to a client by a Clearing and Forwarding Agent in relation to clearing and forwarding operations in any manner. Since the storage is also a part of obligation to the assessee, the amount charged as fixed charge by you amounting to Rs.38,50,000/- from H.L.L. should attract service tax @ 5%. Therefore you are directed to deposit Rs.1,92,500/- immediately on account of S.T. on the fixed charges received from H.L.L. ................. The assessee submitted a reply to this letter on 8 November 2002 stating that the amount which was realised towards use of the cold storage was not in respect of providing services and was not covered by the value of the taxable service. The assessee stated that it was rendering service of handling for which it was realising service charges and on which service tax was paid on the gross amount charged for the service o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . v. Collector of Central Excise, Bombay [1995 Suppl. (3) SCC 462], we find that suppression of facts can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty, when facts were known to both the parties, the omission by one to do what he might have done not that he must have done would not render it suppression. It is settled law that mere failure to declare does not amount to willful suppression. There must be some positive act from the side of the assessee to find willful suppression. Therefore, in view of our findings made herein above that there was no deliberate intention on the part of the appellant not to disclose the correct information or to evade payment of duty, it was not open to the Central Excise Officer to proceed to recover duties in the manner indicated in proviso to Section 11A of the Act. We are, therefore, of the firm opinion that where facts were known to both the parties, as in the instant case, it was not open to the CEGAT to come to a conclusion that the appellant was guilty of suppression of facts . In Densons Pultretaknik v. Collector of Central Excise 2003 (11) SCC 309, this Court held that mere clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of taxable service in respect of which service tax has not been levied or paid or has been short-levied or short-paid- (a) where under the rules made under this Chapter, a periodical return, showing particulars of service tax paid during the period to which the said return relates, is to be filed by an assessee, the date on which such return is so filed; (b) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (c) in any other case, the date on which the service tax is to be paid under this Chapter or the rules made thereunder; (ii) in a case where the service tax is provisionally assessed under this Chapter or the rules made thereunder, the date of adjustment of the service tax after the final assessment thereof; (iii) in a case where any sum, relating to service tax, has erroneously been refunded, the date of such refund. Now in the present case, it is admitted that under the Rules, a half yearly return is required to be filed by the assessee by the 25th of the month following the particular half year. The terminal date of the period governed by the show cause notice is 31 March 2005 for which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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