TMI Blog2019 (12) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant. - Service Tax Appeal No. 41586 of 2019 - FINAL ORDER NO. 41647 / 2019 - Dated:- 5-12-2019 - MR. P. DINESHA, MEMBER (JUDICIAL) Shri. Tanuj Hazari, Advocate for the Appellant Ms. Sridevi Taritla, Authorized Representative (A.R.) for the Respondent ORDER A Show Cause Notice/Statement of Demand dated 14.03.2018 was issued inter alia alleging that the appellant had contravened the provisions of Rule 2 (l), Rule 3 and Rule 9 (6) of the CENVAT Credit Rules, 2004 and thereby had wrongly availed CENVAT Credit of Service Tax paid on the rental premises of ₹ 1,41,323/-; that therefore, the same was required to be recovered since the rental premises on which the CENVAT Credit was availed was other than the factory premises which was not related to manufacture, etc. A copy of the Show Cause Notice/Statement of Demand is part of the documents in the Appeal Memorandum, a perusal of which makes it clear that the period involved was from 04/2015 to 06/2015. 2. The appellant responded to the above Statement of Demand vide its reply dated 03.04.2018 wherein it was inter alia contended that the CENVAT Cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ival contentions and gone through the documents placed on record. 8.1 Taking the first argument of the Ld. Advocate for the appellant, I find that the Show Cause Notice/Statement of Demand has been issued without any whisper as to invoking the larger period of limitation, much less any whisper as to suppression, fraud, etc. Admittedly, the proposal to raise the demand was for a much earlier period. If the proposal to raise the demand is for an earlier period beyond one year, then the authority has to invariably invoke the extended period of limitation and invoking the larger period could be possible only if there is suppression, fraud, etc., played by the assessee, to justify such invocation of larger period. In view of this, the appellant should succeed on this ground alone. 8.2 In this regard, I find it very useful to refer to a decision of the Hon ble High Court of Delhi in the case of M/s. Bharat Hotels Ltd. Vs. Commissioner of C.Ex . (Adjudication) reported in 2018 (12) G.S.T.L. 368 (Del.) wherein the Hon ble High Court after considering various judicial precedents has held as under : 24 . As noticed in the excerpted portions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roviso to Section 28 of the Customs Act is pari materia to proviso to Section 11A of the Excise Act (as held in Uniworth), the interpretation of proviso to Section 28 may also be extended to interpret the proviso to Section 73 of the Finance Act. Uniworth (supra) is also authority on the meaning of wilful misstatement and suppression of facts ; the Court held that : 12. ... The conclusion that mere non-payment of duties is equivalent to collusion or wilful misstatement or suppression of facts is, in our opinion, untenable. If that were to be true, we fail to understand which form of non-payment would amount to ordinary default? Construing mere non-payment as any of the three categories contemplated by the proviso would leave no situation for which, a limitation period of six months may apply. In our opinion, the main body of the Section, in fact, contemplates ordinary default in payment of duties and leaves cases of collusion or wilful misstatement or suppression of facts, a smaller, specific and more serious niche, to the proviso. Therefore, something more must be shown to construe the acts of the appellant as fit for the applicability of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... known to both the parties, the omission by one to do what he might have done and not that he must have done does not constitute suppression of fact. 26. Again, the Supreme Court in Continental Foundation Joint Venture Holding v. Commissioner of Central Excise, Chandigarh-I [(2007) 10 SCC 337 = 2007 (216) E.L.T. 177 (S.C.)], held that : 10. The expression suppression has been used in the proviso to Section 11A of the Act accompanied by very strong words as fraud or collusion and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11A the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equated with a wilful misstatement. The latter implies making of an incorrect statement with the knowledge tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 2005-06. The same has again been also acknowledged by the DGCEI in the SCN. The absence of any material disclosing intent to evade payment of Service Tax by the appellant is evident by the fact that it promptly made all the payments pertaining to Service Tax liability with respect to Mandap Keeper Service and Management, Maintenance and Repair Service as soon as the appellant became aware of the same (during the enquiry) and continued to pay Service Tax thereafter. The authorities are unanimous that to invoke the extended period under cognate provisions (such as Section 11A of the Excise Act or Section 28A of the Customs Act) the burden is cast upon it to prove suppression of fact. The Revenue has not been able to prove an intention on the part of the appellant to evade tax by suppression of material facts. In fact, it is clear that the appellant did not have any such intention and was acting under bona fide beliefs. For these reasons, it is held that the Revenue cannot invoke the proviso to Section 73(1) of the F inance Act to extend the limitation period for issuing of SCN. The SCN was issued on 24-10-2008. The undischarged liability for payment of Service Tax with respe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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