TaxTMI 
TaxTMI 
2016 (2) TMI 691
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....ss amounting to Rs. 22,381/- totalling to Rs. 23,05,054/- should not be demanded and recovered from it and the order dated 27-6-2014 passed by the Additional Commissioner, Central Excise & Service Tax, Dibrugarh (respondent 3) confirming the demand and recovery of Service Tax from it and the imposition of a penalty of 23,05,054/-. In WP(C) No. 6777 of 2014, the same petitioner is challenging the notice dated 16-1-2014 issued by the same respondent requiring him to show cause as to why the Service Tax amounting to Rs. 22,80,518/- Education Cess amounting to Rs. 45,611/- and Secondary and Higher Education Cess totalling Rs. 22,805/- which come to a total of Rs. 23,48,934/- should not be demanded and recovered and of the order dated 27-06-2014 passed by the same respondent confirming the demand and recovery of Service Tax and the imposition of penalty of Rs. 23,48,934/-. In WP(C) No. 6778 of 2014, the same petitioner is questioning the legality of the order dated 30-11-2009 confirming the Service Tax amounting to Rs. 5,14,724/- and Education Cess amounting to Rs. 10,294, the total whereof comes to 5,25,018/- with a penalty of Rs. 5,25,018/- payable by it, the appellate order dated 30-....
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....it petition has been filed. 3. It is the contention of Mrs. M. Hazarika, the learned senior counsel for the petitioner, that when the revenue decides to invoke the extended period of limitation under Section 73(1) of the Act, the burden is cast upon them to prove wilful suppression of facts and in the instant case, the petitioner has been submitting its Service Tax returns regularly by showing the details and particulars of the exemption availed of by them, which were within their knowledge. According to the learned senior counsel, the respondent No. 3, while issuing the impugned order, has failed to consider the relevant fact that in terms of the Letter of Award, the burden of Service Tax was on the Service Receiver and the component of Service Tax paid by the Service Receiver was realized from the petitioner as Service Provider, which clearly indicates that it had nothing to gain by evading payment of the Service Tax. The learned senior counsel further contends that the petitioner neither suppressed any fact before the Revenue nor violated any provision of law and are, therefore, not liable to pay Service Tax as demanded by the Revenue. As the petitioner did not suppress any fac....
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....of limitation. It has been further held that intent to evade duty is built into the expression "fraud and collusion" but misstatement and suppression is qualified by the preceding word "wilful". Therefore, it is not correct to say that there can be suppression or misstatement of fact, which is not wilful and yet constitutes a permissible ground for invoking the proviso to Section 11-A. "25. In case of Pushpam Pharmaceuticals Co. v. CCE 1995 Supp (3) SCC 462 : (1995) 78 ELT 401 this Court has held that the extended period of five years under the proviso to Section 11-A(1) is not applicable just for any omission on the part of the assessee, unless it is a deliberate attempt to escape from payment of duty. Where facts are known to both the parties, the omission by one to do what he might have done and not that he must have done does not constitute suppression of fact. "26. Applying the tests in the aforestated judgments to the facts of the present case, we find that the demands raised by the department in the impugned three show-cause notices were time-barred. The first show-cause notice was dated 30-12-1987. It was in respect of the period 1-4-1986 to 30-11-1986. The second show-....
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....ment was not entitled to invoke the proviso to Section 11-A(1). In our view, the judgment of the Madhya Pradesh High Court in Jayant Vitamins Ltd.1 is not on the applicability of Notification No. 234/86, as it is sought to be urged on behalf of the appellant. The said judgment is only on the point of limitation. It only states that the department was not entitled to invoke the proviso to Section 11-A(1) as the assessee had indicated in the gate passes the material facts. On this point, before concluding, we may mention that in the present case, we have come to the conclusion that there was no wilful suppression of facts on the part of the appellant as the appellant had filed the gate passes, invoices and monthly returns, which were all duly approved by the department from time to time. The invoices, gate passes and the monthly returns indicated the names of the consignees from which it was possible for the department to infer sale of sorbitol solution to non-pharmaceutical companies and yet no steps were taken by the department to raise the demand in time and, therefore, we hold that there was no wilful suppression of material facts for invoking the proviso to Section 11-(A)(1). Th....
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....d, subject to it being done within one year from the relevant date. On the other hand, the demand for duty in relation to extended period is mentioned in the proviso to Section 73-(A)(1). Under that proviso, in cases where excise duty has not been levied or paid or has been short-levied or short-paid or erroneously refunded on account of fraud, collusion or wilful misstatement or suppression of facts, or in contravention of any provision of the Act or Rules with the intent to evade payment of duty, demand can be made within five years from the relevant date. Viewed against the backdrop of the principles enunciated by the Apex Court in Sarabhai M. Chemicals (supra), we are of the firm view that the findings made by the respondent No. 3 suffer from the vice of non-application of mind. If we may say so, the respondent No. 3 does not appear to understand the difference between the scope and ambit of Section 73(1) and the proviso to Section 73(1) as evident from his findings at para4.6 of his order, which reads as under: "4.6 Regarding suppression of facts, I observe that the noticee have (sic) resorted to suppress the material facts from the department with intent to evade Service Ta....