TaxTMI 
TaxTMI 
2012 (9) TMI 337
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....consignment agents during the period 16-7-1997 to 31-8-1999? 2. Whether the Appellant Tribunal was justified in holding that the show cause notice issued to the respondent was time barred without considering the reasons assigned by the Appellate Commissioner who held that the show cause notice issued to the appellant so far as it relates to the period from 16-10-1998 to 31-8-1999 was not time barred under Section 73 of the Finance Act, 1994? and 3. Whether the orders passed by both the forums i.e., the Appellate Commissioner and the Appellate Tribunal are based on incorrect interpretation of Section 73 of the Finance Act, 1994?" 3. The facts, in brief, as projected by the revenue are that the respondent company was engaged in the manufacture of excisable goods falling under Chapter 76 of the First Schedule to the Central Excise Tariff Act, 1985. According to learned counsel for the revenue, the service provided by the "clearing and forwarding agent" was exigible to Service Tax with effect from 16-7-1997. The service receiver was made responsible for collecting the Service tax by amendment in the Service Tax R....
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....the service receiver of services rendered by clearing and forwarding agent for the period 16-7-1997 to 16-7-1998 was revalidated by Section 116 and 117 of the Finance Act, 2000 by making amendment in Section 65, 66 and 67 of the Act. Under the definition of 'assessee' under Sections 65(6) of the Act, 2000 which was amended by Section 116 of the Finance Act, 2000, it was defined as "his agent; or in relation to service provided by a clearing agent, every person who engages a clearing and forwarding agent by whom remuneration or commission (by whatever name called) is paid for such services to the said agent". Thus, it was the responsibility of the assessee to pay Service tax. 7. In support of his contention, Shri Sharma would rely on a decision of Gujarat Ambuja Cements Ltd. & Others v. UOI - 2005 (182) E.L.T. 33 (S.C.). Under amended provision of the Act, which came into force w.e.f. 16-10-1998, the responsibility of payment of Service tax was shifted on the service receiver in respect of services rendered by the clearing and forwarding agents, by making specific provision under Rule 2(1)(d)(iii) of the Rules w.e.f. 16-10-1998. 8. Shri M.P. Devnath with Shri Aditya ....
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....and forwarding" service received from their consignment agents during the period 16-10-1998 to 31-8-1999 and as such, demand of Service tax for the said period was upheld. However, demand for the rest of the period was set aside. The amount of penalty imposed under Section 78 of the Act was also reduced to an amount equivalent of Service tax determined by the adjudicating authority for the period 16-10-1998 to 31-8-1999. Further, the penalty amounting to Rs. 500/- imposed under Section 75A was upheld and the penalty amounting to Rs. 1,000/- imposed under Section 77 was set aside. 11. The Tribunal held that when different views are prevalent about the applicability of tax, extended period is not available to the revenue for the purposes of raising demands. The Tribunal itself had rendered conflicting decisions and the issue was subsequently decided by a larger Bench. It was held that the procedural failure on the part of the assessee was the result of bona fide belief that it was not liable to pay the tax under the extended period. Thus, the appeal of the assessee was allowed. Since the demand notice was quashed on the ground of limitation, the appeal of the revenue was also....
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....bunal in Prabhat Zarda Factory (Pvt.) Ltd. v. CCE, Patna reported in 2002 (145) E.L.T. 222 = 2002 (50) R.L.T. 326 (CEGAT-KOL). The decision in Prabhat Zarda Factory (Pvt.) Ltd. stands overruled to the extent of the aforesaid ratio laid down thereunder. The reference is answered accordingly. All these appeals will now be placed before the concerned Division Bench for decision on merits in the light of this judgment and in accordance with law." 15. The Supreme Court in the matter of Jaiprakash Industries Ltd. (supra) held that if there was a divergent view in various cases. There was a bona fide doubt. 16. In Continental Foundation JT. Venture (supra), the Supreme Court held as under : "10. The expression "suppression" has been used in the proviso to Section 11A 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 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 ....