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TMI Blog2023 (12) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... for 'air transportation of passengers'. 3. However, a show cause notice dated 23.10.2013 was issued to the appellant proposing a demand of service tax under the category of 'supply of tangible goods'. The show cause notice also invoked the extended period of limitation contemplated under the proviso to section 73 (1) of the Finance Act, 1994 [the Finance Act]. The appellant filed a reply to the show cause notice and denied the allegations made therein. The Additional Commissioner, by order dated 22.05.2017, confirmed the demand of service tax after holding that the extended period of limitation was correctly invoked. Feeling aggrieved, the appellant filed an appeal before the Commissioner (Appeals) which was dismissed by order dated 30.01.2018. 4. Shri Atul Kumar Gupta, learned consultant appearing for the appellant submitted that the extended period of limitation could not have been invoked in the facts and circumstances of the case and, therefore, the impugned order deserves to be dismissed for this reason alone. In support of his contention, learned consultant placed reliance upon the following two decisions of this Tribunal :- (i) EIH Ltd. versus Commissioner of Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ples. 12. Even assuming that there was suppression, it has to be examined whether suppression was wilful and with an intent to evade payment of service tax. The Supreme Court and the Delhi High Court have held that suppression of facts has to be "wilful' and there should also be an intent to evade payment of service tax. 13. Before adverting to the decisions of the Supreme Court and the Delhi High Court, it would be useful to reproduce the proviso to section 11A of Central Excise Act, 1944, as it stood when the Supreme Court explained "suppression of facts" in Pushpam Pharmaceutical Co. vs. Commissioner of Central Excise, Bombay [1995 (78) E.L.T. 401 (SC)]. It is as follows: "11A: Where any duty of excise has not 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 requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to by the Supreme Court in Anand Nishikawa Company Ltd. vs. Commissioner of Central Excise [2005 (188) E.L.T. 149 (SC)] and the observations are as follows: "26........... This Court in the case of Pushpam Pharmaceutical Company v. Collector of Central Excise, Bombay, while dealing with the meaning of the expression "suppression of facts" in proviso to Section 11A of the Act held that the term must be construed strictly. It does not mean any omission and the act must be deliberate and willful to evade payment of duty. The Court, further, held :- "In taxation, it ("suppression of facts") can have only one meaning that the correct information was not disclosed deliberately to escape 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." 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], we find that "suppression of facts" can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty. Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 73 (1) of the Finance Act and held as follows: "27. Therefore, it is evident that failure to pay tax is not a justification for imposition of penalty. Also, the word "suppression' in the proviso to Section 11A(1) of the Excise Act has to be read in the context of other words in the proviso, i.e. "fraud, collusion, wilful misstatement". As explained in Uniworth (supra), "misstatement or suppression of facts" does not mean any omission. It must be deliberate. In other words, there must be deliberate suppression of information for the purpose of evading of payment of duty. It connotes a positive act of the assessee 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) 19. Very recently the Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s supplied) 20. It would transpire from the aforesaid decisions that mere suppression of facts is not enough and there must be a deliberate and wilful attempt on the part of the assessee to evade payment of duty. In the absence of any intention to evade payment of service tax, which intention should be evident from the materials on record or from the conduct of the assessee, the extended period of limitation cannot be invoked. Thus, mere non disclosure of the receipts in the service tax return would not mean that there was an intent to evade payment of service tax. 21. This issue was also examined at length by this Bench in M/s G.D. Goenka Private Limited vs. The Commissioner of Central Goods and Service Tax, Delhi South [Service Tax Appeal No. 51787 of 2022 dated 21.08.2023] 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 thro ..... 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