TMI Blog2015 (8) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... post communication dated 06/08/2006, which is referred by the adjudicating authority, it was also in the knowledge of the department that a clarification has been issued, despite such clarification, there seems to be no follow up by the department like seeking for the details or demand of tax from the appellants, in the absence of any positive action of in suppressing the details from the department, we find that tax liability which is being worked out by invoking the extended period is not correct - demands raised on the appellant are blatantly hit by limitation and we set aside the impugned order on the question of limitation. Since we have set aside the demands, the question of interest and penalties does not arise and they are also set aside. - Decided in favour of assessee. - Appeal No. ST/388/10 - - - Dated:- 15-7-2015 - M. V. Ravindran, Member (J) And Raju, Member (T),JJ. For the Appellant : Shri Piyush Chhajed, CA For the Respondent : Shri K S Mishra, Addl. Comm. (AR) ORDER Per: M V Ravindran: 1. This appeal is directed against Order-in-Original No. 13/STC-I/BR/10-11 dated 17/06/2010 passed by Commissioner of Service Tax-I, Mumbai. 2. The relev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 913 dated 10/11/2006 sought the details from the appellant as to their service tax liability on the amounts charged from the passengers for the period 01/05/2006 to 30/09/2006. He submitted that the appellant replied to the said letter on 14/03/2007 itself and there was no further correspondence. Accordingly, it is his submission that the Revenue was aware of the entire issue on 10/11/2006 and hence the show-cause notice issued on 10/03/2010 is hit by limitation. It is also his submission that findings recorded by the adjudicating authority that the appellant's issue clarified from the Board as to the taxability of the amount received as early as in 06/08/2009, they should have started discharging the service tax on the amounts so received in advance by their own, is an incorrect proposition as the appellant were in doubt and hence, such clarification was sought. He would rely upon the judgement of the Apex Court in the case of Uniworth Textiles Ltd., - CIVIL APPEAL NO. 6060 OF 2003 was the proposition in situation like the case in hand extended period cannot be invoked. 4. The learned DR on the other hand reiterated the findings of the adjudicating authority and submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DUSTRIAL ESTATE, P.B. MARG, WORLI, MUMBAI - 400 013 F.No. ST/MUM/DIV-III/GR-I/ATS/7913 Mumbai, the 10/11/2006 To: M/s Air India Ltd., Finance Building Old Airport, Kalina Santacruz (E) Mumbai - 400 029 Sub: Levy of Service Tax on International Journey by Aircraft.. reg Gentlemen, You are aware that service tax is leviable with effect from 01 st May 2006 on services provided by an aircraft operator to passengers embarking in India for international journey by any class, other than economy class, under Section 65 (105) (zzz0)read with section 66 of the Finance Act, 1994. Board of Airline Representatives in India (BAR) have sought clarifications on the levy of service tax on the above mentioned service. In this regard, the Central board of Excise Customs (Ministry of Finance) vide Circular No. 85/3/2006-ST dated 17/10/2006 has interalia clarified that service tax is leviable on the total value of the ticket. The copy of said Circular is available on Website : www.servicetax.gov.in In view of the above you are requested to submit the following information so that early action can be taken. Further you are also requested to inform the amount of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e variation in the demand amount, I find that since they have collected such amount much before the service became taxable and hence the taxes were not collected separately from the customers. Thus the amounts collected are inclusive of service tax and the correct amount of service tax is ₹ 74,48,904/-. 4.4 In self assessment procedure the responsibility is on the tax payer to assess and pay the tax liability correctly. It is not open to them to take the plea that no demand for extended period can be made when full disclosure of material details was not made by them. The case laws relied on by the noticee is different on material facts mainly dealing with Central Excise issues under different circumstances. As such their plea against demand for extended period and for non-imposition of penalty for non-payment of service tax in time is not legally tenable. As per Section 75 of the Act, interest on delayed payment is automatic and mandatory. Considering all the above facts and evidences, I pass the following order: 5.5 We do not understand the reasoning given by the adjudicating authority for coming to a conclusion that the service tax liability arises on the appellant fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er answered in favour of the appellant and in its reply, even quoted a letter by the Ministry of Commerce in favour of an exemption the appellant was seeking, which anybody would have found satisfactory. Only on receiving this satisfactory reply did the appellant decide to claim exemption. Even if one were to accept the argument that the Development Commissioner was perhaps not the most suitable repository of the answers to the queries that the appellant laboured under, it does not take away from the bona fide conduct of the appellant. It still reflects the fact that the appellant made efforts in pursuit of adherence to the law rather than its breach. 24. Further, we are not convinced with the finding of the Tribunal which placed the onus of providing evidence in support of bona fide conduct, by observing that the appellants had not brought anything on record to prove their claim of bona fide conduct, on the appellant. It is a cardinal postulate of law that the burden of proving any form of mala fide lies on the shoulders of the one alleging it. This Court observed in Union of India Vs. Ashok Kumar Ors.((2005) 8 SCC 760) that it cannot be overlooked that burden of establish ..... X X X X Extracts X X X X X X X X Extracts X X X X
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