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TMI Blog2025 (5) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... rest be not imposed upon him. The petitioner has further challenged the order dated 04.07.2024 (Annexure 'P-4') issued by Respondent No. 2 whereby and whereunder he has confirmed demand of service tax of Rs. 25,25,313/-, interest and an equivalent penalty. Submissions on behalf of the Petitioner 2. Mr. D.V. Pathy, learned Senior Counsel for the petitioner submits that in the present case, Respondent No. 2 has invoked the extended period of limitation alleging that the petitioner had suppressed the facts which have been revealed during investigation and it was done with sole intent to evade payment of service tax. 3. Learned Senior Counsel submits that the petitioner was running a travel agency. He was receiving money on account of sale of tickets and in lieu of sale of tickets, the petitioner was receiving commission. It is submitted that under the provisions of the Service Tax Laws, he would be liable to pay service tax only to the extent of commission received on booking of travel tickets. It is his stand that in terms of the provisions of the Finance Act, 1994 (hereinafter referred to as the 'Act of 1994'), no tax is payable on the gross value received and the liability, if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be held as barred by limitation. 10. Learned Senior Counsel has also relied upon the Circular Letter dated 13th December, 2023 being F. No. CBIC-20004/3/2023-GST issued by the Government of India in Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs addressed to all the Principal Chief Commissioners/Chief Commissioners/Principal Commissioners/ Commissioners of Central Tax and all the Principal Directors General/ Directors General of Central Tax. It is submitted that the Circular Letter has been issued in view of the judgment of the Hon'ble Supreme Court in case of C.C., C.E. and S.T. Bangalore (Adjudication) and Others vs. Northern Operating Systems Private Limited reported in (2022) 17 SCC 90. The Hon'ble Supreme Court's judgment in case of Commissioner of Central Excise, Mumbai Versus M/s Fiat India (P) Limited in Civil Appeal No. 1648-49 of 2004 has been taken note of and the relevant part of paragraph '66' of the said judgment has been quoted therein. 11. The Circular Letter of the Department clearly says that only in the cases where the investigation indicates that there is material evidence of 'fraud' or 'wilful mis-statement' or 's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Siddhartha Travels and Shri Anil Kumar are separate entities although both are having same Permanent Account Number (in short 'PAN') AHEPK7765K. The respondent authority has found that in this way, he tried to circumvent the issue with respect to present liability to pay service tax. It has been noted that the proprietor and individuals are considered the same person and for this very reason, the same 'PAN' for the trade name and for the individual in the instant case was issued as both the entities are same and equal in the eye of law. As regards the merit of the case, the petitioner took a stand that due to fire in his establishment, all the documents have been destroyed and he is not in a position to submit anything in support of his claim but all of a sudden in response to personal hearing, later on, the petitioner changed his stand and came out with a submission that they were providing services of travel agent. However, in support of this submission no valid much less any cogent documentary support has been provided. 15. Learned ASG submits that the service tax is chargeable on gross taxable value under Section '66' of the Act of 1994 and not on the margins arrived at on in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Supreme Court in case of M/S Fiat India (P) Ltd. (supra) from which it would appear that the Hon'ble Supreme Court has observed that each case depends on its own facts and a close similarity between one case and another is not enough because either a single significant detail may alter the entire aspect. Similar view has been taken by this Court in the case of Ramnath Prasad versus Principal Commissioner of CGST and Central Excise and Anr. (CWJC No. 10644 of 2024) reported in 2025 (2) BLJ 145 (HC). 21. Learned ASG further submits that this Court has considered the scope and ambit of clause (b) of sub-Section (4B) of Section 73 of the Act of 1994. It has been consistent view of this Court that the said provision is not providing an absolute period and, in fact, in paragraph '10', the learned Co-ordinate Bench while rendering the judgment in the case of Kanak Automobiles Private Limited (supra) has also agreed that clause (b) of sub-Section (4B) of Section 73 of the Act of 1994 is not providing an absolute period of limitation. 22. It is submitted that the present case is not one of those cases in which any jurisdictional error has been committed by the Authority issuing sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. 26. We find that in paragraph '5' of the impugned order (Annexure 'P-4'), the respondent no. 2 has taken note of the submissions made on behalf of the petitioner. We reproduce the same hereunder for a ready reference:- "5. The noticee in response of the notice submitted written defence reply dated 12.02.2024 stating, among others, as follows, - (i) As per the SCN, M/s Sidhartha Travels was called upon to show cause their contentions in respect of charges levelled vide SCN. (ii) The allegation of non-payment of tax in the SCN is on M/s Sidhartha Travels (PAN: AHEPK7765K) and not on Anil Kumar (PAN: AHEPK7765K). (iii) The SCN is for the period of 2015-16 and 2016-17 and the demand is based on value as per sale of service declared in the ITR. The value of TDS is shown as zero in the SCN, and it means that Form 26AS document related to the noticee is not reflecting any amount. (iv) During the relevant period Anil Kumar was carrying his business as proprietor of Raj Travels. (v) His bank account of SBI, Maurya Lok Complex is also in the name of Raj Travels. (vi) Therefore, SCN issued in the name of M/s Sidhartha Travels is not a valid SCN. (vii) As all the document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra) and this Court has held that the requirement to prove fraud and collusion is the extent to evade duty. This is a question of fact and may be properly adjudicated by either the Adjudicating Authority or the Appellate Authority. Prima-facie, we find that the Adjudicating Authority has discussed this issue so we will have a glance over the same to satisfy over the same to satisfy oneself as to whether any jurisdictional error may be found in this regard in the impugned order. 30. The Circular Letter dated 13th December, 2023 refers relevant part of paragraph '66' of the judgment of the Hon'ble Supreme Court in the case of M/s Fiat India (P) Ltd. (supra) which we reproduce hereunder for a ready reference:- "66. "Each case depends on its own facts and a close similarity between one case and another is not enough because either a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive." We do not intend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suppression of fact must be wilful." (emphasis added) 23. The same position was reiterated in Continental Foundation Joint Venture Holding v. CCE (2007) 10 SCC 337 : (2007) 216 ELT 177 to which one of us (Kapadia, J.) was a party. In ELT paras 10 and 12 of the judgment it was observed as follows: (SCC pp. 341-42, paras 12 & 14) "12. The expression 'suppression' has been used in the proviso to Section 11-A of the Act accompanied by very strong words as 'fraud' or 'collusion' and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop (sic evade) the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11-A the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equated with a wilful misstatement. The latter implies making of an incorrect statement with the knowledge that the statement was not cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, so to do and conclude the proceedings within an year. No steps were taken in the entire one year period, which results in the frustration of the goal of expediency as required statutorily. We hence find that the proceedings cannot be continued." 35. Contrary to the aforesaid factual position which persuaded the learned Co-ordinate Bench to allow the writ application in Kanak Automobiles Private Limited (supra), in the present case, this Court finds that the show-cause notice was issued during Corona period and the petitioner filed it's defence reply in the month of February 2024 whereafter he was given three opportunities of personal hearing. 36. We refer the above-mentioned observations of the Hon'ble Supreme Court in the case of M/S Fiat India (P) Ltd. (supra) in paragraph '66'. We are of the considered opinion that the case of the present petitioner stands on a completely different footing with that of Kanak Automobiles Private Limited (supra). 37. This Court has granted relief to the petitioner in M/S Power Spectrum (supra) only after being satisfied that in the said case, the show cause notice was issued on 05.09.2018 whereas the impugned order was passed on 09.07.2024. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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