TMI Blog2024 (4) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... dit. Admittedly the fact about commission paid by the appellant to the foreign service provider was not indicated by the appellant in the Shipping Bill as required under the said notification. However all the details as required under the notifications were made available by way of Form-EXP2 filed by the appellant. Extended period of limitation - Suppression of facts or not - appellant had not produced the copy of agreement with the foreign service provider and the relevant documents to audit at the time of audit - HELD THAT:- Though these documents were in existence and were made available to revenue authorities even before the issuance of show cause notice. As all the information which was necessary to determine eligibility under Notification No.18/2009-ST was available with the Revenue and the prescribed Return/Form was filed by the appellant they could not have suppressed any fact from the Department for which extended period of limitation could have been invoked. Where merely a procedural violation in respect of complying with a condition of Notification cannot be said to be an act of suppression for invoking extended period of limitation. No justification for invoking extende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er certain correspondence a show cause notice dated 31.01.2013 was issued to the appellant asking them to show as to why:- i. Service Tax amounting to Rs. 30,71,176/- (Rs. Thirty lacs seventy one thousand one hundred seventy six only) not paid by party during the period 2009-10, should not be demanded and recovered from them under proviso to Section 73 of Finance Act, 1994. ii. Interest on delayed payment of Service Tax should not be demanded under Section 75 of the Finance Act, 1994. iii. Penalty should not be imposed upon them under Section 77 78 of Finance Act, 1994 for contravention of Section 66 A, 68 70 of the Act read with Rule 6 and 7 of Service Tax Rules 1994. 2.4 The show cause notice was adjudicated as per Order-In-Original No.71/Addl.Commissioner/Noida/2013-14 dated 31.03.2024 holding as follows:- ORDER i. I confirm demand of Service Tax amounting to Rs. 30,71,176/- (Rs, Thirty lacs seventy one thousand one hundred seventy six only) under section 73(2) of the Finance Act 1994. ii. I order for recovery of confirmed demand alongwith interest under section 75 of the Finance Act, 1994. iii. I impose penalty of Rs. 5,000/= upon the party under Section 77(2) of Finance Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-compliance has came to knowledge only during the course of audit, therefore, extended period is invokable is not sustainable, as has been held by Hon ble Allahabad High Court in the case of Accurate Chemical Industries 2014 (310) ELT 441 (All) ➢ the Show Cause Notice has alleged that the fact of suppression and violation of provisions of Notification came to notice of the department only at the time of audit therefore the extended period of limitation invokable. The mere violation of the condition of Notification in absence of an allegation of suppression with intent to evade payment of tax is not sufficient to invoke extended period of limitation as held in the matter of PVR Ltd. [2021 (55) GSTL 435] SEBI 2023 (385) ELT 865 (Bom); Bharat Hotels Ltd. [2018 (12) GSTL 368]. CONTINENTAL FOUNDATION JT. VENTURE [2007 (216) E.L.T. 177 (S.C.)] 3.3 Learned Departmental Representative reiterates the findings given in the impugned order. 4.1 We have considered the impugned order along with the submissions made in the appeal and during the course of argument. 4.2 Undoubtedly the entire case of the Revenue has been based on the audit-objection raised by CERA. Extract of objection is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder proviso to Section 73 of the Finance Act. 1994 read with Section 75 of the act. The party has also rendered themselves liable for penal action as contemplated under Section 77 78 for contravention of Section 66 A, 68 70 of the Act read with Rule 6 and 7 of Service Tax Rules 1994. 4.4 On the issue of limitation Adjudication Authority has observed as follows:- 24. The party has contended that extended period of limitation of five years is not invokable, as prescribed EX-2 returns, for the relevant period was filed by them in due course of them. Whereas the notice to show cause alleged that the party suppressed facts from the department and violated the provisions of Notification No. 18/2009-ST and that these facts came to the knowledge of the department only during the course of the audit, hence extended period invokable. 24.1 As discussed in aforesaid paras, the party, though required under notification No. 18/2009-ST, failed to produce copy of the agreement dt. 01.01.09 to the audit, submitted the same only after issuance of letter from the jurisdictional range on 12th June, 2012 and now with this reply. Further, by not fulfilling the conditions of the Notification, as discuss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the exporter is a proprietorship concern or partnership firm, the documents enclosed with the return shall be certified by the exporter himself and where the exporter is a limited company, the documents enclosed with the return shall be certified by the person authorised by the Board of Directors; g) where the amount of service tax in respect of the service specified against serial No. 2 of the Table exceeds one per cent. of the free on board value of the export then, the amount in excess of the said one per cent. shall be paid within the period specified under rule 6 of the Service Tax Rules, 1994; 4.6 For implementation of the above notification the said notification itself provides for filing of the Form EXP1 and EXP2, at prescribed frequency with the jurisdictional Deputy/ Assistant Commissioner. The format of the said Form EXP1 EXP2 is reproduced below: Form- EXP1 [see Paragraph (a)(i)] S.No---------------------- (to be filled in by the office of jurisdictional Assistant / Deputy Commissioner) To, The Deputy Commissioner /Assistant Commissioner of Central Excise Sir, I/We intend to avail the exemption from service tax under Notification No.18/2009-ST, dated...............in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill in the proforma, commodity-wise) No Date Date of Let Export Order Export Invoice No Date Description of goods exported Quantity (please mention the unit) FOB Value (in rs in Lakhs) Table-B Details of specified services used for export of goods, covered under the Shipping Bill or Bill of Export mentioned in Table A in respect of which the exemption has been availed during the six months ending on................................ Details of Documents attached showing the use of such services for export, the details of which are mentioned in Table A (self attested) Total amount of service tax claimed as exemption (rupees in lakhs) Name of service provider Address of service provider Invoice No Date Description of specified service Classification under the Finance Act, 1994 9. Declaration:- I / We hereby declare that- (i) I have complied with all the conditions mentioned in notification No 18/09-ST, dated 7th July, 2009; (ii) the information given in this application form is true, correct and complete in every respect and that I am authorised to sign on behalf of the exporter; (iii) no CENVAT credit of service tax paid on the specified services used for export of said goods taken un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation could have been invoked. Where merely a procedural violation in respect of complying with a condition of Notification cannot be said to be an act of suppression for invoking extended period of limitation. No justification for invoking extended period of limitation is forthcoming from the show cause notice, order in original or the impugned order. 4.11 When all the facts were in the knowledge of the Department, extended period could not have been invoked as has been held by the Anand Nishkawa Co Ltd. [2005 (188) E.L.T. 149 (S.C.)] 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, 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 vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curate Transformers Limited. Consequently, these clearances were liable to be treated as being made to a related person for its captive use and under Rule 9 read with Rule 8 of the Central Excise Valuation Rules, 2000, the duty was payable on 110%/115% of the cost of production, whereas it was paid on a lower value. On the invocation of the extended period of limitation, the Tribunal held that the assessee had duly filed ER-1 returns on a monthly basis. Under the circulars of the Central Board of Excise and Customs, the Range Officer was required to carry out a detailed scrutiny of the ER-1 returns and if this had been done, the short payment would have been detected. There was no evidence of any collusion between the assessee and the jurisdictional Central Excise Officers. The short payment was detected when an audit team visited the premises and examined the records but this, as the Tribunal held, could have been detected even by the jurisdictional Range Officer much earlier. In the circumstances, it was held that there was no suppression of fact or wilful misstatement on the part of the assessee and no ground was, therefore, available for invoking the extended period of limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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