9911796707
TMI Blog2023 (11) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... eer, (AF) WAC, Military Engineer Service, Palam, Delhi Cantt issued the letter of acceptance dated 14.06.2016 in favour of the appellant on behalf of the President of India. 2.3 The appellant entertained a view that their services provided to the Chief Engineer, Military Engineer Services is exempted from payment of service tax vide the notification number 25/2012-ST dated 20.06.2012 as amended from time to time. 2.4 Based on the intelligence inputs received by the Directorate General of Goods and Service Tax Intelligence, Ahmedabad, an inquiry was initiated against the appellant regarding difference in taxable value declared in the service tax returns filed by them as compared to the revenue shown in their financial statements. On conclusion of the investigation, show cause notice dated 27th August 2020 was issued to the appellant on the ground that appellant are not eligible for exemption under Notification No. 25/2012-ST dated 20.06.2012 as amended and also have misdeclared or suppressed the value of the taxable services. The show cause notice alleged suppression on the part of the appellant and invoked the extended period of limitation as provided for in first proviso to sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment cannot be allowed to discriminate between various assesses on the same issues. A view was taken that the centres of the Appellant would not be required to pay Service Tax under BAS, if Service Tax had been paid on the entire amount by the agency. This submission was made in view of the order dated 25 October 2012 passed by the Commissioner (Appeals), which order had attained finality. It is in this context that the Tribunal held that once the Department has permitted the order to attain finality, it cannot be permitted to contend that the Appellant should also be required to pay Service Tax on BAS and to arrive at this conclusion, reliance was placed on the decision of the Supreme Court in Damodar J Malpani vs. CCE - 2002 (146) E.L.T. 483 (S.C.) - 2002-VIL-32- SC-CE, wherein it was held: 3. It appears from the records that several letters were written by the Appellant to the Excise Authorities requesting that a sample of the Appellant product may be chemically analysed at the Appellant cost for the purpose of determining whether the Appellant product or process in any way differed from the product and process of M/s. Chandulal K. Patel and Company. However, the Excise Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel appearing on behalf of the Revenue Authorities as to why different stand had been taken in the cases of M/s. Chandulal K. Patel & Company and the Appellant. Since the matter had not been squarely dealt with on facts at any stage by any of the authorities below, it was not possible for learned Counsel to give us the reasons for drawing this distinction between the two manufacturers and differently classify what were alleged to be materially the same product. 7. In the circumstances we deem it appropriate to set aside the order of the Tribunal and remand the matter back to the Tribunal for considering whether the product and process followed by M/s. Chandulal K. Patel & Co. is the same as that of the Appellant product for the chemical analysis if not already done. The Tribunal will thereafter consider the question of classification of the appellant product having regard to the classification of Karta Chhap Zardathe chemical analysis report and any other material that may be placed before it by the respective parties. 18. In this view of the matter, when the Commissioner in regard to the Appellant own case for a subsequent period held that Service Tax cannot be levied under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for Government of Maharashtra in terms of direct agreement with the Regional Transport Authorities, it is clearly an admitted fact that their work is directly linked to the preparation of smart cards which are essential to fulfill the statutory work of Government of Maharashtra. We find that the analysis of factual and legal position by the Original Authority cannot be faulted. We also examined the proposal made by the Revenue in the demand notice for tax liability of the respondent. We note that essentially the respondent were put to tax liability under sub-clause (vi) of Section 65(19) dealing with Business Auxiliary Service. The said sub-clause states provision of service on behalf of the client. We are not very clear as to who is the client and who is the recipient of service in the present case. The allegation is that M/s. Shonkh is a service provider to GOM who is a client; M/s. Shonkh are providing services to the applicants of smart card on behalf of Government of Maharashtra. Following the similar reasoning the allegation is that the respondent is providing service to M/s. Rosmerta who is a client of the respondent and the respondent are providing services to M/s. Shonkh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as arisen on the basis of comparison of the income disclosed by the appellant in their financial statements and disclosed the value of taxable services in their periodical returns. It is also undisputed fact that the entire income was recorded as a income in the financial statements of the appellant. Therefore it is not a case where the income was also not recorded in financial statement and the revenue authorities found out the rendition of services on the part of the appellant basis on some other sources. 3.5 We find that the similar issue was recently examined by the division bench of this tribunal at Delhi in case of M/s. Digital Infusion Pvt. Ltd. reported in 2023-VIL-894-CESTAT-DEL-ST wherein it was observed as under: "12. It is not in dispute that the entire demand that has been confirmed by the Commissioner (Appeals) falls in the extended period of limitation. It has, therefore, to be seen whether the extended period of limitation could have been invoked in the facts and circumstances of the case. 13. To consider the issue, it would be appropriate to examine the allegations contained in the show cause notice. It mentions that non payment of service tax on the inputs se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficers, which would have otherwise gone unnoticed. The assessee is working under the selfassessment regime, hence, the onus of assessment of tax payable is on the assessee. They have failed to discharge this onus with willful intent to evade the payment of Service Tax. Further, it also appears that the assessee had intentionally and suppressed/concealed the facts of non-payment of Service Tax on import of Services under RCM and also failed to show their liability in ST-3 return with a willful intent to evade the payment of service tax and/or availment and utilization of Cenvat Credit. But for the audit conducted, the facts of improper availment and utilization of Cenvat credit/non-payment of Service Tax would not have come to the knowledge of the department. Thus, by not disclosing the entire vital facts to the department by them, it appears that the provisions of proviso to Section 73 (1) of the Finance Act, 1994 read with Rule 14 of CENVAT Credit Rules, 2004 are invokable and so the demand and recovery can be made for short/nonpayment of service tax/non-reversal of the amount under Rule 6 of the CCR for extended period of five years from the relevant date". (emphasis supplied) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not the case of the department, and it cannot be, that the department came to know that the appellant had not discharged service tax liability on the input service on reverse charge basis only during the audit. Yet, the show cause notice was issued on 23.06.2020 i.e. almost after a period of three years and two months from the date the verification was conducted by the department. 17. The appellant may have suppressed information in the ST-3 returns filed by it regarding the liability to pay service tax on input service on reverse charge basis, though it had paid service tax while providing output service, but the department was aware of this fact on 11.04.2017. All that has been stated by Commissioner (Appeals) in the impugned order is that since it was evident that the appellant had not declared the liability on import of services under reverse charge in the ST-3 returns, this would amount to suppression of such import of services and if the verification of the records had not been conducted, non-payment of service tax could not have been detected. 18. There is no finding by the Commissioner (Appeals) that this fact had been suppressed by the appellant with an intent to ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 the rules made thereunder with intent to evade payment of service tax, by the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as if, for the words "one year", the words "five years" had been substituted." 21. It would be seen from a perusal of sub-section (1) of section 73 of the Finance Act that where any service tax has not been levied or paid, the Central Excise Officer may, within one year from the relevant date, serve a notice on the person chargeable with the service tax which has not been levied or paid, requiring him to show cause why he should not pay amount specified in the notice. 22. The "relevant date‟ has been defined in section 73 (6) of the Finance Act as follows; 73(6) For the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts; or (e) contravention of any of the provisions of this Act of the rules made thereunder with intent to evade payment of duty by any person chargeable with the duty, the Central Excise Officer shall, within five years from the relevant dated, serve notice on such person requiring him to show cause why he should not pay the amount specified in the notice along with interest payable thereon under Section 11AA and a penalty equivalent to the duty specified in the notice." 26. In Pushpam Pharmaceuticals Company, the Supreme Court examined whether the Department was justified in initiating proceedings for short levy after the expiry of the normal period of six months by invoking the proviso to section 11A of the Excise Act. The proviso to section 11A of the Excise Act carved out an exception to the provisions that permitted the Department to reopen proceedings if the levy was short within six months of the relevant date and permitted the Authority to exercise this power within five years from the relevant date under the circumstances mentioned in the proviso, one of which was suppression of facts. It is in this context that the Supreme Court observed that since "suppression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid observations of this Court in the case of Pushpam Pharmaceutical Co. v. Collector of Central Excise, Bombay [1995 Suppl. (3) SCC 462], we find that "suppression of facts" can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty. When facts were known to both the parties, the omission by one to do what he might have done not that he must have done would not render it suppression. It is settled law that mere failure to declare does not amount to willful suppression. There must be some positive act from the side of the assessee to find willful suppression. Therefore, in view of our findings made herein above that there was no deliberate intention on the part of the appellant not to disclose the correct information or to evade payment of duty, it was not open to the Central Excise Officer to proceed to recover duties in the manner indicated in proviso to Section 11A of the Act." (emphasis supplied) 28. These two decisions in Pushpam Pharmaceuticals and Anand Nishikawa Company Ltd. were followed by the Supreme Court in the subsequent decision in Uniworth Textile Limited vs. Commissioner of Central Excise, Raipur [2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take out a license without the presence of such intention." xxxx The Revenue has not been able to prove an intention on the part of the Appellant to avoid tax by suppression of mention facts. In fact it is clear that the Appellant did not have any such intention and was acting under a bonafide belief." ( emphasis supplied) 31. Very recently the Delhi High Court in Mahanagar Telephone Nigam Ltd. vs. Union of India and others [W.P. (C) 7542 of 2018 decided on 06.04.2023] - 2023-VIL-216-DEL-ST, also observed as follows: "28. In terms of the proviso to Section 73(1) of the Act, the extended period of limitation is applicable only in cases where service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, or collusion, or wilful misstatement, or suppression of facts, or contravention of any provisions of the Act or the Rules made thereunder with an intent to evade payment of service tax. However, the impugned show cause notice does not contain any allegation of fraud, collusion, or wilful misstatement on the part of MTNL. The impugned show cause notice alleges that the extended period of limitation is applicable as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T-DEL-ST and after referring to the provisions of section 73 of the Finance Act, the Bench observed:- "13. There is no other ground on which the extended period of limitation can be invoked. Evidently, fraud, collusion, wilful misstatement and violation of Act or Rules with an intent all have the mens rea built into them and without the mens rea, they cannot be invoked. Suppression of facts has also been held through a series of judicial pronouncements to mean not mere omission but an act of suppression with an intent. In other words, without an intent being established, extended period of limitation cannot be invoked. xxxxxxxxxxxxx 14. In this appeal, the case of the Revenue is that the appellant had wilfully and deliberately suppressed the fact that it had availed ineligible CENVAT credit on input services. The position of the appellant was at the time of self-assessment and, during the adjudication proceedings and is before us that it is entitled to the CENVAT credit. Thus, we find that it is a case of difference of opinion between the appellant and the Revenue. The appellant held a different view about the eligibility of CENVAT credit than the Revenue. Naturally, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also find that the issue of limitation was elaborately discussed by the division bench of this tribunal at Delhi in another case of M/s. GD Goenka Private Ltd. reported in 2023-VIL-798-CESTAT-DEL-ST where in it is observed as under : 11. We have examined these grounds for invoking extended period of limitation. 12. Section 73 provides for recovery of service tax not levied, not paid, short levied, short paid or erroneously refunded. The provisions of this section apply mutatis mutandis to irregularly availed CENVAT credit recoverable under Rule 14 of CCR. This section permits invoking extended period of limitation to raise a demand on the following grounds: a) Fraud; or b) Collusion; or c) Wilful misstatement; or d) Suppression of facts; or e) Violation of the Act or Rules with an intent to evade payment. 13. There is no other ground on which the extended period of limitation can be invoked. Evidently, fraud, collusion, wilful misstatement and violation of Act or Rules with an intent all have the mens rea built into them and without the mens rea, they cannot be invoked. Suppression of facts has also been held through a series of judicial pronouncements to mean not m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. Another reason given in the SCN for invoking extended period of limitation was that the appellant had deposited the disputed amount of service tax during audit but later disputed it which shows the appellant's intent to wilfully and deliberately suppress the facts. This reasoning of the Revenue cannot be accepted because there is nothing in the law which requires the assessee to accept the views of the audit or of the Revenue. There is nothing in the law by which an inference of intent to evade can be drawn if the assessee does not agree with the audit. It also does not matter if the assessee deposited the disputed amount as service tax during audit and later disputed it. Often, during audit or investigation, the assessee deposits some or all of the disputed amounts and later, on consideration or after seeking legal opinion, disputes the liability and seeks a notice or an adjudication order. This does not prove any intent to evade or deliberate or wilful suppression of facts. 16. Another ground for invoking extended period of limitation given in the impugned order is that the appellant was operating under self-assessment and hence had an obligation to assess service tax c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscloses that the respondents had faulted MTNL for not approaching the service tax authorities for clarification. The respondents have surmised that this would have been the normal course for any person acting with common prudence. However, it is apparent from the statements of various employees of MTNL that MTNL did not believe that the amount of compensation was chargeable to service tax and therefore, there was no requirement for seeking clarifications. Further, there is no provision in the Act which contemplates any procedure for seeking clarification from jurisdictional service tax authority. Clearly, the reasoning that MTNL ought to have approached the service tax authority for clarification, is fallacious." Therefore, there is no force in this ground also. 19. It has also been pointed out that but for the audit, the allegedly irregularly availed CENVAT credit would not have come to light. It is incorrect to say that but for the audit, the alleged irregular availment of CENVAT credit would not have come to light. It is undisputed that the appellant has been self-assessing service tax and filing ST-3 Returns. Unlike the officers, the assessee is not an expert in taxation a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come to light. It would have come to light if the central excise officer had discharged his responsibility under section 72. 21. This legal position that the primary responsibility for ensuring that correct amount of service tax is paid rests on the officer even in a regime of self-assessment was clarified by the Central Board of Excise and Customs [CBEC] in its Manual for Scrutiny of Service Tax Returns the relevant portion of which is as follows: 1.2.1 A The importance of scrutiny of returns was also highlighted by Dr. Kelkar in his report on Indirect Taxation [Report of the Task Force on Indirect Taxation 2002, Central Board of Excise and Service Tax, Government of India]. The observation made in the context of Central Excise but also found to be relevant to Service Tax is reproduced below : It is the view that assessment should be the primary function of the Central Excise Officers. Selfassessment on the part of the taxpayer is only a facility and cannot and must not be treated as a dilution of the statutory responsibility of the Central Excise Officers in ensuring correctness of duty payment. No doubt, audit and anti-evasion have their roles to play, but assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guard the interest of revenue'. The Rule also allows the officer to call for any record maintained by the assessee for accounting of transactions, the trial balance or its equivalent, and the Income Tax Audit Report maintained under Section 44AB of the Income Tax Act. In other words, the Rule permits the officer to examine financial records for scrutinizing the return to determine the correctness of the assessments made. In pursuance of this, the Board has also issued guidelines vide letter F.No.137/27/2007 CX.4, dated 08.02.2007, which makes it mandatory to scrutinize returns on a regular basis. Details of the Board's guidelines on returns' scrutiny are discussed in Chapter 2 of this Manual. 1.2.2B The guidelines clearly envisaged that returns' scrutiny would become the core function of the Service Tax Group/Range, supervised by the Assistant Commissioner of the Service Tax Unit. 24. Thus, the CBEC took a conscious decision that detailed scrutiny of the Returns should be done only in some cases selected based on some criteria. In those Returns, where detailed scrutiny is not done by the officers some tax may escape assessment which may not be discovered within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal is, accordingly, partly allowed. 3.7 It is also useful to refer to one more decision of these tribunal in case of Emaar MGF Land Ltd. reported in 2021-VIL-364-CESTAT-DEL-ST wherein on ground of limitation it was held as under: 14. The first issue that arises for consideration is whether the Commissioner was justified in holding that the extended period of limitation contemplated under section 73(1) of the Finance Act, 1994 [the Finance Act] was correctly invoked in the facts and circumstances of the case. 15. The contention of the learned counsel for the appellant is that the necessary ingredients for invoking the larger period of limitation contemplated under the proviso to section 73 (1) of the Finance Act, namely wilful suppression of facts with an intent to evade payment of service tax do not exist and, therefore, the extended period of limitation could not have been invoked. 16. In order to appreciate this contention it would appropriate to reproduce section 73 of the Finance Act as it stood at the relevant time. This section deals with recovery of service tax not levied or paid or short levied or short paid or erroneously refunded. It is as follows; "73.(1) Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -statement or suppression of facts or contravention of any of the provisions of the Chapter or the Rules made there under with intent to evade payment of service tax, by the person chargeable with the service tax, the provisions of the said section shall have effect as if, for the word "one year", the word "five years" has been substituted. 20. Learned counsel for the appellant submitted that the payment of service tax by the appellant on works contract services and availment of CENVAT credit was duly reflected by the appellant in the ST-3 returns and once such necessary details were reflected in the statutory returns, it cannot be urged that the appellant had suppressed facts. Even otherwise, learned counsel submitted, that suppression has to be wilful with an intent to evade payment of service tax, if the extended period of limitation has to be invoked by the Department, but the Commissioner observed that it would be possible to invoke the extended period of limitation even in a situation where there is no intent to evade payment of service tax. 21. Learned Authorised Representatives appearing for the Department have, however, supported the finding recorded by the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been levied or paid or has been short- levied or short-pain or erroneously refunded, by the reason of- (a) fraud; or (b) collusion; or (c) any wilful misstatement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Act of the rules made thereunder with intent to evade payment of duty by any person chargeable with the duty, the Central Excise Officer shall, within five years from the relevant dated, serve notice on such person requiring him to show cause why he should not pay the amount specified in the notice along with interest payable thereon under Section 11AA and a penalty equivalent to the duty specified in the notice." 26. In Pushpam Pharmaceuticals Company, the Supreme Court examined whether the Department was justified in initiating proceedings for short levy after the expiry of the normal period of six months by invoking the proviso to section 11A of the Excise Act. The proviso to section 11A of the Excise Act carved out an exception to the provisions that permitted the Department to reopen proceedings if the levy was short within six months of the relevant date and permitted the Authority to exercise this power within five year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment 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." 27. Relying on the aforesaid observations of this Court in the case of Pushpam Pharmaceutical Co. v. Collector of Central Excise, Bombay [1995 Suppl. (3) SCC 462 - 1995-VIL-05-SC-CE], we find that "suppression of facts" can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty. When facts were known to both the parties, the omission by one to do what he might have done not that he must have done would not render it suppression. It is settled law that mere failure to declare does not amount to willful suppression. There must be some positive act from the side of the assessee to find willful suppression. Therefore, in view of our findings made herein above that there was no deliberate intention on the part of the appellant not to disclose the correct information or to evade payment of duty, it was not open to the Central Excise Officer to proceed to recover duties in the manner indicated in proviso to Section 11A of the Act." (emphasis supplied) 28. These t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee to avoid excise duty. xxxx Thus, invocation of the extended limitation period under the proviso to Section 73(1) does not refer to a scenario where there is a mere omission or mere failure to pay duty or take out a license without the presence of such intention." xxxx The Revenue has not been able to prove an intention on the part of the Appellant to avoid tax by suppression of mention facts. In fact it is clear that the Appellant did not have any such intention and was acting under a bonafide belief." (emphasis supplied) 31. It would also be useful to refer to a decision of the Tribunal in Shiv-Vani Oil & Gas Exploration Services Ltd. vs. C. S. T., New Delhi [2017 (47) STR 200 (Tri-Del.) - 2016-VIL-769-CESTAT-DEL-ST], wherein the Tribunal after making reference to the decision of the Supreme Court in Cosmic Dye Chemical vs. CCE, Bombay [1995 (75) E.L.T. 721 (SC) - 1994- VIL-19-SC-CE], observed that there should be an intent to evade payment of service tax if the extended period of limitation has to be invoked. The observations are as follows: "8. Regarding the demand for extended period, we find the reason given by the Original Authority is not legally sustain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice tax. Though, the Commissioner in the last sentence of paragraph 8.6 of the order observed that "in any case, the noticee, in this case, has willfully contravened the provisions of the Finance Act", but there is no discussion or reasons given by the Commissioner for so concluding and only a bald statement has been made and that too as an alternative finding. 33. Thus, for all the reasons stated above, it is not possible to sustain the finding recorded by the Commissioner that the Department was justified in invoking the extended period of limitation contemplated under the proviso to section 73(1) of the Finance Act. 34. The submission advanced by the learned Authorised Representatives by the Department that even if it were to be held that the extended period of limitation contemplated under the proviso to section 73(1) of the Finance Act could not be invoked, then too the demand can be confirmed under section 73A of the Finance Act now needs to be examined." 3.8 We also note that the above decision of the tribunal is affirmed by Hon'ble Delhi High Court as reported in 2023-VIL-109-DEL-ST wherein the revenue department's appeal was dismissed with following observations : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Revenue may have been justified in demanding that any amount recovered from purchasers as service tax be deposited to the credit of the Central Government under Section 73A(2) of the Act. However, as stated above, that question does not arise as the Revenue had accepted the order, dropping the proceedings under Section 73A of the Act. 14. The learned Tribunal rightly found that the proposal and the show cause notice to recover a sum of Rs.2,44,48,095/- under Section 73A of the Act and the interest thereon under Section 73B of the Act, was not confirmed by the learned Commissioner in his order- in-original. Accordingly, the learned Tribunal held that, in the absence of a cross-appeal by the Department, it would not be possible to confirm any demand under Section 73A of the Act. 15. We find no infirmity with the aforesaid view and thus, Question Nos. (V) and (VI), as projected by the Revenue and as noted in paragraph no. 8 above, are answered in the negative. 16. As observed above, prima facie, the question whether the respondent has wrongfully availed the Cenvat Credit would arise only if the respondent had a liability to pay service tax and had wrongfully reduced the same b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anation.- Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of thirty months or five years, as the case may be." 19. It is apparent from the above that the proviso to Section 73(1) of the Act is applicable only where it is found that the service tax has not been levied or paid or has been short levied or short paid or erroneously refunded by reason of fraud; collusion; wilful mis- statement; or suppression of facts; or contravention of the provisions of the Act and the Rules made thereunder with the intention to evade payment of service tax. In the present case, there is no allegation of any fraud or collusion. It is also apparent from the order-in- original that the Commissioner had proceeded on the basis that the proviso would be applicable notwithstanding that there was no intent on the part of the respondent to evade any tax. The Commissioner had proceeded on the basis that the extended period of limitation was applicable on account of suppression of facts and "wilful mis-statements". 20. In the circumstances, the Tribunal had examined the question whether the proviso to Section 73(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise Act, 1944, which was similarly worded as the proviso to Section 73(1) of the Act, and observed as under: "4. Section 11A empowers the Department to re-open proceedings if the levy has been short-levied or not 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. The meaning of the word both in law and even otherwise is well known. In normal understanding it is not different that what is explained in various dictionaries unless of course the context in which it has been used indicates otherwise. A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or wilful 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 fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 11-A 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 an incorrect statement with the knowledge that the statement was not correct." 27. In view of the authoritative decisions rendered by the Supreme Court, the learned Tribunal held that the Commissioner had erred in holding that the respondent had suppressed information from the Department regarding payment of service tax. 28. We concur with the finding of the learned Tribunal that in the given facts, the proviso to Section 73(1) of the Act could not be applied. The respondent had filed its return of service tax on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt was considered as exempted by the Noticee, the same is required to be mentioned in the ST-3 return along with the provisions/ specific applicable exemption Notification. As the said amount was not mentioned in the ST-3 return, the difference in the same as compared to that mentioned in the Books of Accounts/ Form 26AS was revealed during the investigation leading to demand SCN. The case laws cited upon by the Noticee fail in supporting this contention of the Noticee." 3.11 It can be seen from the above that Ld. Commissioner has only observed that since the appellant did not disclose the revenue for these project in their periodical return and therefore the Ld. Commissioner has justified the invocation of extended period of limitation to confirm the demand of service tax in the present matter. Learned Commissioner has not given any ground to show that there was a deliberate attempt on the part of the appellant to suppress or to miss declare the value of service. Ld. Commissioner has not even examined the various ingredients for invocation of extended period of limitation as provided in first proviso to section 73(1) of the Finance Act 1994.We observe that on the basis of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
