TMI Blog2023 (10) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in such an event, the onus entirely lies with the department to prove that in fact the notice can be issued by invoking the extended period of limitation. In the present case, the entire modus operandi adopted by the assessee-appellant of providing the mess facilities at IIT, Kanpur were known to the department through the exchange of various communication between both the sides. Further, the contents of the agreements, referred supra, were also known to the department well in advance. Since, no additional documents were relied upon by the department for confirmation of the adjudged demands beyond the normal period, we do not find any substance in the appeal filed by the Revenue that the show cause proceedings are not barred by limitation of time. The Hon ble Supreme Court, in the case of PUSHPAM PHARMACEUTICALS COMPANY VERSUS COLLECTOR OF C. EX., BOMBAY [ 1995 (3) TMI 100 - SUPREME COURT] have ruled that when the Revenue authorities were aware of the facts about the assessee s activities, then issuance of show cause notice should be confined to the normal period. The above referred judgement, though were delivered in context with Section 11A of the Central Excise Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, other than the hostel residents, may also be allowed to use the mess facility by buying coupons. The responsibility of issuing coupons shall lie with the contractor. e. Rate for providing 3 meals per day per student was at the cost of Rs.52/- f. The rates so fixed are inclusive of all taxes (other than UPTT and UPDT, duties and levies imposed by the State/Central Govt. and Local Bodies as on the date of award of work. However, if any new tax is imposed, enhanced by the Govt. subsequent to the award of work, the shame shall be reimbursed along with UPTT/UPDT on production of proof of payment. (ii) Agreement dated 23.11.2009 (for the period December 2009 to March 2012) In the amended agreement dated 23.11.2009, the raw materials and other necessary items was to be provided by the institute free of cost. The contractor was assigned with the following task: a. Cooking and serving three meals. b. Facilitate procurement of raw material on behalf of the hostel. c. Coupon sales for extra items. d. The mess premises comprising cooking and dining facilities, furniture, food/raw material containers, appliances, utensils, electricity and water shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -appellant, holding that SCN issued for the period 2007-08 to 2011-12 is barred by limitation of time in terms of the proviso to sub-section (1) of Section 73 ibid. 2. 9,11,946/- Dropped the demand confirmed in the adjudication order for the period 01.07.2012 to 31.03.2013, holding that the services provided by the assessee-appellant were exempted service in terms of Notification No.25/2012-ST dated 20.06.2012 read with CBEC Circular No.172/7/2013-ST dated 19.09.2013. 3. Not quantified Impugned order has modified the original order passed in respect of SCN dated 17.10.2013, with a direction to the original authority to calculate the service tax liability for the period 01.04.2012 to 30.06.2012 and accordingly to impose penalties under Section 76 and 77 ibid. 3. Revenue has assailed the impugned order inter alia, on the ground that the show cause proceedings are not barred by limitation of time; that payment of VAT by considering the transaction as sale would not absolve the assessee from payment of service tax on provision of taxable output ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in such an eventuality, the Central Excise Officer may, within eighteen months from the relevant date, serve notice on the person chargeable with the service tax, requiring him to show cause, as to why he should not pay the amount specified in the notice. However, in the proviso clause appended to Sub-section (1) of Section 73 ibid, it has been provided that in case of non-levy or non-payment or short-levy or short-payment of service tax, owing to the reason of fraud; or collusion; or wilful mis-statement; or suppression of facts; or contravention of any of the provisions of this Chapter-V ibid, or the Rules made thereunder, with an intent to evade payment of service tax, instead of the period of eighteen months, the show cause notice shall be issued within a period of five years from the relevant date. On reading of the said statutory provisions, it is amply clear that proposal for recovery of service tax in normal circumstances should be confined to eighteen months only; whereas, under exceptional circumstances, the said period can be extended upto a period of five years, subject to fulfilment of the conditions that the ingredients itemized in the proviso clause were satisfied. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties the omission by one to do what he might have done and not that he must have done, does not render it suppression. 6.2 Further, in the case of Anand Nishikawa Co. Ltd. Vs. Commissioner of Central Excise, Meerut 2005 (188) ELT 149 (SC), the Hon ble Supreme Court have dealt with the identical situation of time limit of issuance of the show cause notice. The relevant paragraphs in the said judgement are quoted below: 26. In Tata Iron Steel Co. Ltd. v. Union of India Ors. [1988 (35) E.L.T. 605 (S.C.)], this Court held that when the classification list continued to have been approved regularly by the department, it could not be said that the manufacturer was guilty of suppression of facts . As noted herein earlier, we have also concluded that the classification lists supplied by the appellant were duly approved from time to time regularly by the Excise authorities and only in the year 1995, the department found that there was suppression of facts in the matter of post-forming manufacturing process of the products in question. Furthermore, in view of our discussion made herein earlier, that the department has had the opportunities to inspect the products of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise [2003 (11) SCC 390], this Court held that mere classification under a different sub-heading by the manufacturer cannot be said to be willful mis-statement or suppression of facts . This view was also reiterated by this Court in Collector of Central Excise, Baroda v. LMP Precision Engg. Co. Ltd. [2004 (9) SCC 703]. 6.3 The above referred judgements, though were delivered in context with Section 11A of the Central Excise Act, 1944, but the ratio is squarely applicable to the case in hand, inasmuch as Section 11A ibid, is pari materia with the provisions of Section 73 ibid. Further, we also find that under identical situation, the Additional Commissioner of Service Tax, Mumbai vide Order dated 07.10.2013 had dropped the show cause proceedings initiated against the similarly placed assessee M/s Asha Caterers, who had provided the mess catering service to IIT, Kanpur, holding that the proceedings are entirely barred by limitation of time. Furthermore, we also find that the said order dated 07.10.2013 had not been appealed against by the Revenue, meaning thereby that the statutory interpretation placed in the said order has been accepted by the competent authorities in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortation of students, faculty or staff of such institution. 7.2 On reading of the above circular issued by the CBEC, it is brought out clearly that the catering service provided to the students in the educational institution should qualify for the exemption as per the notification dated 20.06.2012. Though the said circular had considered provision of catering services under any mid-day meals scheme, but such scope is extendable to the case of the appellant inasmuch as such phrase in the circular preceded with the phrase included . The term includes in the statutory definition is generally used to enlarge the meaning of the preceding words and it is by way of extension, and not with restriction. In this context, the law is well settled that the term includes widens the scope of definition, which enhances the scope of the definition as it is inclusive in nature; and therefore, the definition cannot be taken as one of restrictive approach. 7.3 In view of the above, we do not find any infirmity in the impugned order insofar as it has allowed the appeal of the appellants in dropping the adjudged demands for the period from 01.07.2012 to 31.03.2013, by placing reliance on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The department has not disputed the fact that the said order dated 07.10.2013 has not been appealed against by Revenue. Thus, the said order had attained finality insofar as the Revenue is concerned and they cannot agitate the matter subsequently in some other cases for a decision differently. The law in this regard is well settled by the Hon ble Supreme Court, in the case of Commissioner of C. Ex., Hyderabad Vs. Novapan Industries Ltd. 2007 (209) E.L.T. 161 (S.C.) as follows : 12. The Tribunal in its order has relied upon its earlier judgment in ICI India Ltd. v. CCE, Hyderabad [2000 (91) ECR 152 (T)] in which the similar issue was involved and the Tribunal had taken the view that interest being inbuilt in the price which had not been charged separately, was deductible from the assessable value. The portion of the said judgment is extracted below: ..The facts recorded by the Hon ble Supreme Court clearly show therefore that interest element was inbuilt in the price and that this price with the interest element inbuilt was under consideration by the Apex Court. When these facts under consideration by the Hon ble Apex Court are read with the final judgment in the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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