TMI Blog2022 (8) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... t levied within six months from the relevant date but the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. It is, therefore, clear that the suppression of facts should be deliberate and in taxation laws it can have only one meaning, namely that the correct information was not disclosed deliberately to escape payment of duty. The confirmation of demand for the period beyond the normal period of limitation by invoking the proviso to section 73(1) of the Finance Act cannot be sustained - the impugned order to the extent it has confirmed the demand for the extended period of limitation is set aside. The confirmation of demand for the normal period is, however, sustained - appeal allowed in part. - Service Tax Appeal No.51920 of 2015 - FINAL ORDER NO. 70123/2022 - Dated:- 8-8-2022 - MR. DILIP GUPTA, PRESIDENT AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri B.L. Narasimhan for the Appellant Shri B.K. Jain Authorised Representative for the Respondent ORDER This appeal is directed against the order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 22.12.2008 Vishal Associates 3151 Original Invoice not available. Photocopy does not contain invoice no. ST registration. / Invoice issued in name of Mr. Jairam Jalan, prop. Reciprocal Impex Ltd. i.e. not in the name of registered assessee. 08.02.2009 618 18.08.2009 721 01.09.2009 3708 02.01.2011 6379 11.01.2011 7354 04.01.2012 7004 2. 27.07.2009 Concept People 717 Original/Photocopy of invoice not available. 3. 31.07.2009 Bichitra Security Guard Agency 578 Photocopy invoice without ST registration ST-2. 4. 01.10.2009 Amit Agrawal Company 3090 Original/Photocopy of invoice not available 5. 26.04.2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Consulting Chamber 463 Original/Photocopy of invoice not available 16. 25.02.2012 S R Engines Sales Services 103 88 968 968 Original/Photocopy of invoice not available 15.03.2012 19.03.2012 26.03.2012 Total 119755 3. The sole submission advanced by Shri B.L. Narasimhan learned counsel for the appellant is that the extended period of limitation under the proviso to section 73 (1) of the Finance Act could not have been invoked. He has, however, very fairly stated that the demand of service tax for the period which is within the normal period of 18 months from the relevant date may be confirmed. 4. It transpires from the aforesaid charts that the service tax liability which is within the normal period is of Rs.7,413/- for the works contract, Rs.61,800/- for demolishing and Rs.2,127/- for inadmissible CENVAT credit. The show cause notice seeks to invoke the extended period of limitation under the proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time is invokable for recovery of service tax short paid by them and the party is also liable for penalty under Section 78 of the Finance Act, 1994. 4.2. The party has suppressed this material fact of rendering 'Site Preparation Services from the department and they even did not applied for registration to incorporate the said service in their Service Tax registration certificate. Thus, the party has violated the provisions of Section 69 of the Finance Act'1994 and therefore they appears to be liable for penalty under Section 77(1)(a) of the said Act. 4.3 And whereas, it appears that the party had neither filed ST-3 return for the 'Site Preparation Services' nor shown any amount received by them as demolition charges in any other head in their ST-3 returns filed to the department and as a result they have short paid service tax to the tune of Rs 11,94,800/-. Thus, it appears that the party has willfully suppressed the taxable value received for 'demolition services' from the knowledge of the department during the financial year 2011-12 and 2012-13 with intent to evade service tax payment. Therefore, proviso to Section 73(1) of the act for invocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. It is in this context that the Supreme Court observed:- 2. ****** The Department invoked extended period of limitation of five years as according to it the duty was short-levied due to suppression of the fact that if the turnover was clubbed then it exceeded Rupees Five lakhs. ******** 4. A perusal of the proviso indicates that it has been used in company of such strong works as fraud, collusion or willful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are 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 render it suppression. (emphasis supplied) 8. It is, therefore, clear that the suppression of facts should be deliberate and in taxation laws it can have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 proviso. (emphasis supplied) 11. The Supreme Court in Continental Foundation Joint Venture vs. Commissioner of Central Excise, Chandigarh [ 2007 (216) E.L.T. 177 (SC) ] also observed in connection with section 11A of the Central Excise Act, that suppression means failure to disclose full information with intention to evade payment of duty and the observations are as follows:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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