TMI Blog2024 (4) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... scrutinize them. The appellant cannot be faulted for not providing any information which it was not required to provide in the ST-3 returns. The central excise officer is given sufficient time to scrutinize the returns and issue a demand under section 73 within the normal period of limitation. If he fails to do so, and if some short payment is not detected and the demand gets time barred, the responsibility for that rests squarely on the officer who is mandated to scrutinize the returns and not on the assessee. In order to invoke extended period of limitation one of the five elements indicated above need to be established and they cannot be presumed. Similarly, to invoke section 73(4), one of the five elements needs to be established and their presence cannot be presumed. The Commissioner has erred in issuing a show cause notice covering the amount of Rs. 5,25,39,217/- which was already paid with interest prior to the issue of show cause notice. This payment is squarely covered by section 73(3)of the Finance Act and it is not excluded by virtue of section 73(4). The demand to this extent needs to be set aside. Service tax payable as reflected in the ST-3 returns but which was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- on five other grounds and appropriated an amount of Rs. 5,25,39,217/- paid by the assessee prior to issue of show cause notice. The assessee s appeal is against this part of the order on three grounds: (a) An amount of Rs. 5,25,39,217/- was paid by it prior to the issue of show cause notice and, therefore, as per section 73 (3) of Finance Act, 1994 [Finance Act], the department should not have served any notice on it for this amount. The only exception to Section 73(3) is section 73(4) which states that nothing in section 73(3) shall apply to a case where service tax has not been levied or paid or has been short levied or short paid or erroneously refunded by reason of (i) fraud (ii) collusion (iii) willful mis-statement (iv) suppression of facts or (v) contravention of any provision or act or rules with an intent to evade payment of service tax. Since none of these elements are present in this case, therefore, no show cause notice should have been issued or in so far as this amount is concerned. (b) As far as the remaining demand of Rs. 6,37,58,915/- is concerned, extended period of limitation should not have been invoked and the demand was time barred. (c) For the same reason, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y refunded, on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise Officer before service of notice on him under sub-section (1) in respect of such service tax, and inform the [Central Excise Officer] of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid : Provided that the Central Excise Officer may determine the amount of short-payment of service tax or erroneously refunded service tax, if any, which in his opinion has not been 18 paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of thirty months referred to in sub- section (1) shall be counted from the date of receipt of such information of payment. Explanation.1 For the removal of doubts, it is hereby declared that the interest under section 75 shall be payable on the amount paid by the person under this sub-section and also on the amount of short payment of service tax or erroneously refunded service tax, if any, as may be determined by the [Central Excise Officer], but for this sub-section. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoking the extended period of limitation as well. 9. We cannot agree with the Commissioner s finding. Not only this assessee but every assessee of service tax operate as self-assessment and that cannot be a ground invoke extended period of limitation. Otherwise, the normal period of limitation will be rendered otiose and the five elements required to invoke the extended period of limitation will also be rendered otiose. 10. The scheme of the service tax requires the assessee to self-assess service tax and file returns as per section 70 of the Finance Act. If the assessee either fails to furnish the service tax return or, having filed the return, fails to assess the tax in accordance with the provisions of the act or rules, section 72 empowers the central excise officer to require the assessee to produce such accounts, documents or other evidences, as he may deem necessary and after taking into account all the relevant materials make the best judgment assessment. In other words, it is the job of the assessee to self-assess tax and file returns as required. It is the job of the officer to scrutinize them to ensure that the service tax has been correctly assessed and paid. It also n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and the ST-3 returns, accepted the asseesse s contention that the appellant had wrongly shown some amounts as net amounts instead of gross amount in the ST-3 returns. After taking them into consideration, the Commissioner found that the reversal of CENVAT credit was correct and proper and, therefore, dropped the demand. The grounds on which the Revenue filed this appeal are as follows: (i) The Commissioner dropped the demand amounting to Rs. 2,81,35,079/- on the ground that the amount of CENVAT credit in terms of rule 6(3) of the Rules was already reversed by them butdue to their mistake it was not shown properly in the corresponding ST-3 returns. (ii) He also relied on a relied CA certificate dated 27.04.2017 produced by the noticee. It is not clear from the CA certificate whether the amount reversed was inclusive of an amount of Rs 52,94,904/- for the period April, 2013 to September, 2013 or not and the Commissioner had not verified this amount. The Commissioner erred in relying on the CA certificate and dropping the demand. 16. We find that the Commissioner examined the returns and the CA certificates and came to the conclusion that the amount under rule 6(3) was correctly re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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