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2017 (2) TMI 674 - ALLAHABAD HIGH COURT

2017 (2) TMI 674 - ALLAHABAD HIGH COURT - TMI - Invocation of extended period of imitation - section 73 (1) of the FA, 1994 - department took a view that even prior to the amendment, the assessee was liable to pay tax - Held that: - the assessee through their letter dated 5.9.2005 had submitted month-wise details of all payment received by them against HVAC works for the period from 1.7.2003 to 15.6.2005. Once the details of the value of taxable services were available to the department on 5.9.2 .....

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he Respondent : Aditya Singh Parihar ORDER Heard Sri Prateek Chandra learned counsel for the department and Sri S.D. Singh learned senior counsel assisted by Sri Aditya Singh Parihar learned counsel for the assessee. This appeal is being decided with the consent of parties at the stage of admission. This is an appeal filed by the department under section 35-G of Central Excise Act, 1944 read with section 83 of the Finance Act, 1994 against an order of the Customs, Excise and Service Tax Appellat .....

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iving at the correct taxable value and correct taxable amount of Service Tax? (2) Whether on the facts and in the circumstances of the case, the CESTAT, New Delhi have gravely erred in interpreting the provisions of proviso to section 73 (1) of the Finance Act, 1994 even though there was sufficient evidence that the party has wilfully with intent to evade service tax, did not disclose the information that they were providing services of "commissioning and installation"/erection, commis .....

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rtment of a substantial amount of revenue? (4) Whether on the facts and in the circumstances of the case, the CESTAT, New Delhi has erred in law in overlooking and important fact that the respondents failed to provide the requisite documents and necessary information sought from the respondents as such the show cause notice was issued on 30.10.2007?" The main contention of the department is that it seeks the application of the proviso to section 73 (1) of the Finance Act, 1994 which reads a .....

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ided that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of- (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as if, for the words " .....

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rding to the department which sent a notice to the assessee on 30.10.2007. The above period too was covered under section 65 (39A) of the Finance Act, 1994 which reads as hereinunder: "65 (39a) "erection, commissioning or installation" means any service provided by a commissioning and installation agency, in relation to, - (i) erection, commissioning or installation of plant, (machinery, equipment or structures, whether pre-fabricated or otherwise); or (ii) installation of - (a) e .....

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to the substitution clause (39a) read as under: "(39a) "erection, commissioning or installation" means any service provided by a commissioning and installation agency in relation to erection, commissioning or installation of plant, machinery or equipment;" The tax which spells from the record are that the assessee applied for registration with effect from 16.6.2005 as it understood that it became liable to pay service tax under the amended provision with effect from 16.6.200 .....

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to service tax became effective for the assessee, the moot question in this case is as to whether the proviso to section 73 (1) of the Finance Act, 1994 would apply. Learned counsel for the assessee has sought to argue that in the abeyance of any allegation of fraud, collusion, wilful mis-statement or wilful default, the provisions of proviso would not apply. In support of his point, the learned counsel for the assessee has relied on the decision of the Hon'ble Apex Court in the case of Push .....

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