TMI Blog2022 (11) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation with an intention to evade payment of service tax. Unless the Additional Commissioner had come to a conclusion that the extended period of limitation was rightly invoked in the show cause notice, it could not have confirmed the demand for any period beyond the normal period of limitation. Likewise, it was also necessary for the Commissioner (Appeals) to form an opinion that the appellant had deliberately suppressed material facts with an intention to evade payment of service tax. 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 Supreme Court in M/S CONTINENTAL FOUNDATION JOINT VEN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Finance Act ]. The appellant filed a reply contesting the demand raised both on merits as well as on limitation but the adjudicating authority by order dated 08.10.2012 confirmed the demand raised in the show cause notice dated 14.07.2010 for the period 2005-2006 and 2008-2009. The appeal filed by the appellant before the Commissioner (Appeals) was dismissed by order dated 21.11.2013. 3. Ms. Priyanka Goel, learned counsel for the appellant contended that since the appellant is an individual person and not a commercial concern, the demand raised for the period prior to 01.05.2006 could not have been confirmed and that the amount towards Employees State Insurance and Provident Fund could not have included in the taxable value since the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levied or paid or has been short-levied or short-paid or erroneously refunded, Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: PROVIDED 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner (Appeals) observed as follows: 6. ***** As regards the issue that the present demand is time barred as the show cause notice has been issued after expiry of one year, I find that the Adjudicating authority has correctly invoked the extended period of limitation under the proviso to Section 73(1) of the Finance Act, 1994 for the demand of Service tax in this case. 11. It would be seen from the aforesaid two orders that even though the Additional Commissioner had not dealt with the issue relating to the invocation of the extended period of limitation, the Commissioner (Appeals) observed that the Additional Commissioner had correctly invoked the extended period of limitation. It was absolutely necessary for the Additional Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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) 13. 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 deliberat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon by the Supreme Court in Uniworth Textiles Ltd. vs. Commissioner of Central Excise, Raipur [ 2013 (288) E.L.T. 161 (SC) ] and the relevant portion of the judgment is reproduced below: 12. We have heard both sides, Mr. R.P. Batt, learned senior counsel, appearing on behalf of the appellant, and Mr. Mukul Gupta, learned senior counsel appearing on behalf of the Revenue. We are not convinced by the reasoning of the Tribunal. The conclusion that mere non-payment of duties is equivalent to collusion or willful 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 cate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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