TMI Blog2017 (3) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... igation on the part of the petitioner to pay any amount as service tax. Held that: - merely for the reason that a person did not pay service tax or did not file return does not amount to wilful suppression of facts to evade payment. That apart, the petitioner has a case that service tax amount had already been collected by his principals and they have accounted the same in their books of accounts. In the said circumstances, I am of the view that neither show cause notice nor Ext.P2 order contain any material to arrive at a finding that the Department was entitled to invoke proviso to Section 73(1) of the Act. Hence it requires a fresh consideration of the matter - matter on remand. Regarding another issue that contractors have already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the petitioner. According to the petitioner, he had filed necessary objection. However, the Adjudication Officer had passed Ext.P2 order dated 01/06/2012 by which the petitioner was mulcted with the liability to pay service tax of ₹ 10,47,796/- along with other charges, penalty etc. The petitioner preferred an appeal against Ext.P2 order on 01/10/2012 with a delay of 43 days which was dismissed. The Department also filed a review which was rejected as per Ext.P3 order dated 10/09/2012. The department, thereafter, filed an appeal which is dismissed as Ext.P6 dated 31/08/2016. 3. The petitioner had raised two specific contentions. One is that the initiation of proceedings by the authority is beyond the period of limitation as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner had contravened any provision of law, the proceeding was clearly barred by limitation. 5. On the other hand, the learned Standing Counsel appearing on behalf of the respondent submits that the writ petition is not maintainable and that the question of limitation was also considered by the original authority in Ext.P2 order by invoking the proviso to Section 73(1) of the Act. It is also contended that when the appeal has been rejected, there is no reason why this Court should entertain this writ petition under Article 226 of the Constitution of India. It is a settled position of law that if a person does not avail of the alternate remedy under the Statute and it is barred by limitation, under normal circumstances, this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t which requires sufficient materials. In other words, either show cause notice should contain sufficient materials to indicate that either the petitioner had suppressed facts or the petitioner had contravened any provisions of the Chapter with an intention to evade payment of service tax. The main case stated by the petitioner is that service tax amount had already been deducted by his principals and therefore he has no obligation to pay any service tax. Even otherwise, if we refer to the judgment, Commissioner of Central Excise v. Bajaj Auto Limited [2010(13) SCC 117], the Apex court had clearly held that non-filing of return will not amount to wilful suppression. Reference is made to paragraphs 15 to 19, which read as under: 15. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the duty of excise has not been levied or paid or short-levied or short-paid, or erroneously refunded by reasons of either fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment of duty. Something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, before the period of six months. Whether in a particular set of facts and circumstances there was any fraud or collusion or wilful misstatement or suppression or contravention of any provision of any Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion. There must be some positive act from the side of the assessee to find wilful suppression. (emphasis supplied) 19. In our view, on a reading of the relevant provision the extended period of limitation as provided by the proviso to Section 11-A(1) of the Act can only be invoked when there is a conscious act of either fraud, collusion, wilful misstatement, suppression of fact, or contravention of the provisions of the Act or any of the Rules made thereunder on the part of the person chargeable with duty or his agent, with the intent to evade payment of duty. In the present case, the Tribunal while considering this issue has not stated whether or not there were any such circumstances which would not allow the Revenue to invok ..... X X X X Extracts X X X X X X X X Extracts X X X X
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