TMI Blog2024 (2) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... contractor. The facts involved in this case that there was an interpretation issue about the liability. The Supreme Court in the matter of THE COMMISSIONER, CENTRAL EXCISE AND CUSTOMS AND ANOTHER VERSUS M/S RELIANCE INDUSTRIES LTD. AND COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX VERSUS M/S RELIANCE INDUSTRIES LTD. [ 2023 (7) TMI 196 - SUPREME COURT] while dealing with the issue of suppression of facts, observed that if the appellant was under a bona fide belief based upon certain judgment then in such case the said bona fide belief cannot be stated to be a suppression of fact and Court held We note that the issue of valuation involved in this particular matter is indeed one were two plausible views could co-exist. In such cases of cases of disputes of interpretation of legal provisions, it would be totally unjustified to invoke the extended period of limitation by considering the assessee's view to be lacking bona fides. In any scheme of self-assessment it becomes the responsibility of the assessee to determine his liability of duty correctly. This determination is required to be made on the basis of his own judgment and in a bona fide manner. Since the interpretati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the service tax return ST-3 the respondent has not shown or paid the service tax, therefore, since the liability to pay the service tax was on the respondent according to Section 71A and the circular issued by the Central Government the respondent was duty bound to show the payment of service tax or its entry in the return. (iv) The show cause notice dated 19-10-2012 was issued that for the financial year 2007-08, 2008-09, 2009-10 and 2010-11 and the trial balance sheet for the financial sheet for financial year 2011- 12 (up to December, 2011) the respondent as a sub-contractor received the payment from the main contractor but had not paid the service tax. Consequently, as per the circular dated 4-1-2008 issued by the Central Board of Excise and Customs the extended period of limitation was invoked. (v) The respondent replied to the said show cause notice stating that the main contractors had already made payment of service tax, therefore, they did not collect the service tax from the main contractor and the levy of tax was not justified. It was further stated that had there been payment of service tax there would have been double taxation and the work order also contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Commissioner of Service Tax v M/s Melange Developers Private Limited Service Tax Appeal No. 50399 of 2014 (decided on 23-5-2019) and the show cause notice which was issued in 2012 did not take care of this issue and the bona fide of the respondent can be shown by the fact that the main contractor had already paid the service tax, which the Commissioner has accepted, therefore, when the interpretation of law itself was in issue, non-disclosure of payment of service tax in ST-3 by the sub-contractor cannot be said to be deliberate, as otherwise it was a bona fide. Consequently, the proviso clause to Section 73 of the Act could not have been invoked. 5. We have heard learned counsel appearing for the parties and perused the documents. 6. Perusal of the order of the Commissioner would show that it is an admitted fact that copies of certificates certifying payment of Service Tax by the main contractor were placed on record, which are as under : Sl.No. Certificate No. date Name of the party (main contractor) Work order No. 1 Ref. D/CE/MSS/0961 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within thirty months 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 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 thirty months , the words five years had been substituted. xxx xxx xxx 9. It is also an admitted fact that in reply to the show cause notice the main defence raised by the respondent herein was that since the main contractor has already made payment of service tax, as such, the respondent did not collect service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to say, an element of intentional action must be present. xxx xxx xxx 23) We are in full agreement with the finding of the Tribunal that during the period in dispute it was holding a bona fide belief that it was correctly discharging its duty liability. The mere fact that the belief was ultimately found to be wrong by the judgment of this Court does not render such belief of the assessee a mala fide belief particularly when such a belief was emanating from the view taken by a division bench of Tribunal. We note that the issue of valuation involved in this particular matter is indeed one were two plausible views could co-exist. In such cases of cases of disputes of interpretation of legal provisions, it would be totally unjustified to invoke the extended period of limitation by considering the assessee's view to be lacking bona fides. In any scheme of self-assessment it becomes the responsibility of the assessee to determine his liability of duty correctly. This determination is required to be made on the basis of his own judgment and in a bona fide manner. 12. While interpreting Section 11A of the Act, 1944, which is pari materia to Section 73 of the Act, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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