TMI Blog2022 (10) TMI 1079X X X X Extracts X X X X X X X X Extracts X X X X ..... not render it suppression. When the Revenue invokes the extended period of limitation under Section 73(1) of the Finance Act, 1994 the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equated with a willful misstatement. The latter implies making of any incorrect statement with the knowledge that the statement was not correct. Though the proviso to Section 73(1) of the Finance Act, 1994 carves out an exception and permits the authority to exercise their power recovery within 5 years from the relevant date in the circumstances in the proviso, one of it being suppression of facts - mensrea/the intent to evade the tax liability is the core for invoking the extended period over the normal period. Appellants apparently have mentioned themselves to be under the bona fide belief of still not being liable under service tax. Based on the said belief only they neither had applied the registration nor had ever filed the service tax return. The reason for such bona fide belief stands corroborated from the fact that the service tax was neither collected by them from M/s. ACCSL nor accordingly, was paid by the appellant. There is no denial to the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 115 (CRM)ST/JD R/2021 dated 20.05.2021 ST/51022/2021 DGGI/JZU/I NV/Gr/A/ST- GST/60/2018- 19/Pt.XII/12 573 dated 10.02.2020 April, 2017 to June, 2017 Rs.1,22,131/- 65/2020- CGST-B (Dem.- ST) dated 10.12.2020 114 115 (CRM)ST/JD R/2021 dated 20.05.2021 ST/51023/2021 DGGI/JZU/I NV/Gr.A/ST- GST/60/201 8-19/Pt.XX/7782 dated 08.11.2019 April, 2016 to March, 2017 Rs.3,94,053/- 70/2020- CGST-B (Dem.- ST) dated 28.12.2020 118 119 (CRM)ST/JD R/2021 dated 20.05.2021 ST/51024/2021 DGGI/JZU/I NV/Gr.A/ST- GST/60/2018- 19/Pt.XX/1957 Dated 10.02.2020 April, 2017 to June, 2017 Rs. 1,32,124/- 71/2020- CGST-B (Dem.- ST) dated 28.12.2020 118 119 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Vs. Commissioner of C.Ex., Aurangabad reported as 2014 (33) S.T.R. 506 (Tri.-LB), had set aside the said confusion vide Final Order dated 12.09.2013 that the services as the one in question are the taxable services and the provider of Business Auxiliary Services is liable to pay the duty. But despite the said decision, the confusion continued due to which the appellants were under bona fide belief that the service tax is not applicable on the services provided by them. The strong reason for such belief is mentioned to be the agents of LIC of India who were also not paying any service tax for providing the services to LIC against receiving commission from LIC. Learned Counsel has impressed upon that the appellants thus had no intention to evade their tax liability, otherwise also, they did not charge any service tax from M/s. ACCSL. They rather had made full disclosure of their entire commission received by them in their respective income Tax Returns filed with Income Tax Department. With these submissions the learned Counsel for the appellant has prayed for impugned order to be set aside. She also challenged the invocation of extended period of limitation with the submission th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been used in the proviso to Section 73(1) of the Finance Act, 1994 is 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 73(1) of the Finance Act, 1994 the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equated with a willful misstatement. The latter implies making of any incorrect statement with the knowledge that the statement was not correct. 8. Though the proviso to Section 73(1) of the Finance Act, 1994 carves out an exception and permits the authority to exercise their power recovery within 5 years from the relevant date in the circumstances in the proviso, one of it being suppression of facts. I also relied upon the decision of Hon ble Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f commission agents are not covered under negative list under Section 66D of the Service Tax Act. The same has nowhere been denied by the appellant. Hence, there arises no doubt as far as the liability of the appellant to pay the service tax on the amount of commission received is concerned, however, within the normal period of their respective show cause notices. From the above discussed law it becomes abundantly clear that mensrea/the intent to evade the tax liability is the core for invoking the extended period over the normal period. Appellants apparently have mentioned themselves to be under the bona fide belief of still not being liable under service tax. Based on the said belief only they neither had applied the registration nor had ever filed the service tax return. The reason for such bona fide belief stands corroborated from the fact that the service tax was neither collected by them from M/s. ACCSL nor accordingly, was paid by the appellant. There is no denial to the fact that appellants have not charged service tax from M/s. ACCSL. There is also no denial to the fact that the entire amount of commission was shown by the appellants in their income tax returns and the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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