TMI Blog2024 (4) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant vide letter dated 16.03.2011 which was responded by the letter dated 19.05.2011 when the entire issue was in correspondence as a sequel of audit conducted Revenue could not have proceeded to issue a notice by invoking extended period of limitation alleging suppression. There are no reason for which an extended period of limitation could have been invoked in the present case the entire demand should fail on this ground itself. Without going into the merits of the case for which learned counsel submits there are certain decisions in their favour, it is held that demand is barred completely by limitation. Since the demand is barred by limitation the penalties imposed on the appellant too are set aside. Appeal allowed. - HON BLE MR. P. K. CHOUDHARY , MEMBER ( JUDICIAL ) And HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Shri Atul Gupta , Advocate for the Appellant Shri A. K. Choudhary , Authorized Representative for the Respondent ORDER SANJIV SRIVASTAVA : This appeal is directed against Order-In-Original No.20/Commissioner/Noida/2014-15 dated 27/01/2015 passed by Commissioner, Service Tax, Noida. By the impugned order following has been held : - ORDER 1. I confirm the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from them under proviso to Section73(1) of the Finance Act, 1994; (ii) the interest on the above amount at appropriate rate should not be recovered under Section 75 of the Finance Act, 1994; (iii) the penalty should not be imposed on them under Section 76, 77 78 of the Finance Act, 1994 for the offences appear to have been committed by them as discussed hereinabove. 2.4 The show cause notice was adjudicated as per the impugned order referred in Para 1 above. 2.5 Aggrieved appellant have filed this appeal. 3.1 We have heard Shri Atul Gupta, Advocate for the appellant and Shri A.K. Choudhary, Authorized Representative for the Revenue. 3.2 Arguing for the appellant learned counsel raised various issued with regards to as mentioned below:- The SCN is based on Presumption and assumption, The impugned order has been passed in violation of the Principles of Natural Justice. The services received by the appellant are not Internet Telecommunication Services but Telecommunication Services . Burden of proof of that the impugned service falls under Internet Telecommunication services as defined by Section was on the department for charging service tax, which has not been discharged. Nature o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any nature, by wire, radio, optical, visual or other electro-magnetic means or systems, including the related transfer or assignment of the right to use capacity for such transmission, emission or reception by a person who has been granted a licence under the first proviso to sub-section (1) of section 4 of the Indian Telegraph Act, 1885 (13 of 1885) and includes (i) voice mail, data services, audio tex services, video tex services, radio paging; (ii) fixed telephone services including provision of access to and use of the public switched telephone network for the transmission and switching of voice, data and video, inbound and outbound telephone service to and from national and international destinations; (iii) cellular mobile telephone services including provision of access to and use of switched or non-switched networks for the transmission of voice, data and video, inbound and outbound roaming service to and from national and international destinations. (iv) carrier services including provision of wired or wireless facilities to originate, terminate or transit calls, charging for interconnection, settlement or termination of domestic or international calls, charging for joi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the officers of Internal Audit Officers of the department as well as the officers of CERA, UP. The issue was raised in the audit and was constantly in communication with the revenue. They responded to the queries raised expressing their view and opinion in the matter. Their contention was not accepted by the revenue and show cause notice was issued to the appellant on 25.02.2014, invoking extended period of limitation as per proviso to Section 73 (1) of the Finance Act, 1994. 4.6 We find that the show cause notice does not lay down the grounds for invocation of extended period of limitation as per proviso to Section 73 of the Finance Act, 1994. Para 8 of the show cause notice which is the only paragraph in this regard is reproduced below:- 8. Since, as above the party has not paid service tax leviable upon them, thus, it appears that service tax as discussed in foregoing paras is recoverable from the party alongwith interest under section 75 of Finance Act'1994 and they have rendered themselves for penalty as prescribed under section 76 of Finance Act'1994. It further appears that the party is willfully avoiding the submission of the requisite documents to the department an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in 2011 (269) ELT 225 (tri. Del). So, I found that the decisions quoted by the assessee are of no help to the assessee and the service tax is rightly demanded in the impugned show cause notice. 4.12 The assessee has further submitted that extended period of limitation requires suppression to be proved and this onus has not been discharged in the SCN. There was never any willful suppression or misstatement of facts by CSC India. Hence, allegation with regard to suppression and intention to evade tax is contrary to facts. Accordingly the demand cannot be sustained. In this regard, I find that the assessee had never disclosed the correct taxable value of the services received from service providers located outside India, neither in ST-3 return filed by them nor in any other documents with intend to evade service tax. It has come to notice only during the audit of the documents of the assessee that the service tax was not paid by them to the above extent, the contention of the assessee that they have provided all the information as required by the audit is not correct as evident from the fact that the assessee has not provided willfully, all required information, till issue of severa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elow:- ➢ Pushpam Pharmaceuticals Co. [1995 (78) E.L.T. 401 (S.C.)] 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 facts are known to both the parties the omission by one t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that since the Excise authorities had collected samples of the products manufactured by the appellant and inspected the products and the relevant facts were very much in the knowledge of the Excise authorities and nothing could be shown by the Excise authorities that there was any deliberate attempt of non-disclosure to escape duty, no claim as to suppression of facts could be entertained for the purpose of invoking the extended period of limitation within the meaning of proviso to Section 11A of the Act. 29. Similarly, in the case of Collector, Central Excise, Jamshedpur v. Dabur India Ltd. [2005 (121) ECR 129 (SC)], this Court held that the extended period of limitation was not available to the Department as classification lists filed by the Assessee were duly approved by the authorities from time to time. In that decision this Court followed its earlier judgment in O.K. Play (India) Ltd. v. Collector of Central Excise, Delhi-III (Gurgaon) [2005 (66) RLT 657 (SC)], held that in cases where classification lists filed by the Assessee were duly approved, the extended period of limitation would not be available to the Department. ➢ EMAAR MGF Land Ltd. [2023 (74) G.S.T.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a head which the revenue considers erroneous. However, if such classification is, ex facie, untenable and done with the intent of evading any liability, the provisio to Section 73(1) of the Act, would be applicable. If the assessee s interpretation of the statutory provision is a reasonable one and the assessee has disclosed material facts, it would be erroneous to apply the proviso to Section 73(1) of the Act on account of mis-declaration or suppression of facts. ➢ Mahanagar Telephone Nigam Ltd.[2023 (73) G.S.T.L. 310 (Del.)] 31. Indisputably, the contention that service tax is not chargeable on the compensation received is not without substance. Since it was MTNL s understanding that the compensation received was not a consideration for any taxable service but for the surrender of spectrum, MTNL could not be expected to disclose the compensation as consideration for service in its Service Tax Returns. Plainly, there was no requirement for MTNL to do so. 32. As noted above, the impugned show cause notice discloses that the respondents had faulted MTNL for not approaching the service tax authorities for clarification. The respondents have surmised that this would have been ..... 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