AI Drafter 
TaxTMI 
TaxTMI 
2017 (3) TMI 729
X X X X Extracts X X X X
X X X X Extracts X X X X
.... undertaken various contracts with effect from 10/09/2004. Services carried out by the petitioner relating to erection was also included as a taxable service. In the meantime, the petitioner was served with Ext.P1 show cause notice dated 06/07/2010 by which the petitioner was called upon to show cause as to why action should not be taken against him under the Finance Act, 1994 for non-payment of service tax for a period from 16/06/2005 to 30/09/2009 and why penalty should not be imposed on the petitioner. According to the petitioner, he had filed necessary objection. However, the Adjudication Officer had passed Ext.P2 order dated 01/06/2012 by which the petitioner was mulcted with the liability to pay service tax of Rs. 10,47,796/- along wi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he petitioner's principals and is available in their books of accounts, it is illegal on the part of the respondent authorities to have mulcted the petitioner with the liability. Further, the petitioner has given a statement, as early as on 26/10/2007 and all particulars relating to the contracts had been disclosed. In so far as the Department does not have a case in the show cause notice or in the impugned order Ext.P2 that the petitioner had suppressed any facts or that the petitioner had contravened any provision of law, the proceeding was clearly barred by limitation. 5. On the other hand, the learned Standing Counsel appearing on behalf of the respondent submits that the writ petition is not maintainable and that the question of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Department that the petitioner had suppressed facts or there was contravention of any provisions of this Chapter or of the Rules made thereunder with intent to evade payment of service tax as provided under Clauses (d) and (e) of the proviso to Section 73(1) of the Act, the Department will get a larger period of limitation, that is upto 5 years. But, the question as to whether they can invoke Clauses (d) and (e) of the proviso to Section 73(1) of the Act is a question of fact which requires sufficient materials. In other words, either show cause notice should contain sufficient materials to indicate that either the petitioner had suppressed facts or the petitioner had contravened any provisions of the Chapter with an intention to evade pa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ised in the section. 16. Interpreting this provision, this Court in CCE v. Chemphar Drugs and Liniments held: (when the period prescribed was six months prior to it being made one year by the Finance Act, 2000 with effect from 12-5-2000): (SCC p. 131, para 9) "9. ... In order to make the demand for duty sustainable beyond a period of six months and up to a period of 5 years in view of the proviso to sub-section (1) of Section 11-A of the Act, it has to be established that the duty of excise has not been levied or paid or short-levied or short-paid, or erroneously refunded by reasons of either fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed) 18. In Anand Nishikawa Co. Ltd. v. CCE this Court has observed: (SCC p. 759, para 27) "27. ... 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 and not that he must have done, would not render it suppression. It is settled law that mere failure to declare does not amount to wilful suppression. There must be some positive act from the side of the assessee to find wilful suppression." (emphasis supplied) 19. In our view, on a reading of the relevant provision the extended period of limitation as provided by the....