TaxTMI 
TaxTMI 
2017 (10) TMI 811
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the proviso to Section 73 of the FA has been rightly invoked? 3. This Court has heard the submissions of Mr. J.K. Mittal, learned counsel for the Appellant Assessee and Mr. Sanjeev Narula, learned counsel for the Respondent Service Tax Department ("Department"). 4. The background facts are that the Assessee was granted licences by the Airports Authority of India ("AAI") for sale of airport entry tickets to visitors to the IGI airport, Delhi and the Chhatrapati Shivaji International Airport, Mumbai on 13th December 2001 and 20th August 2004 respectively. 5. The Assessee states that it was not allowed by the AAI to collect service tax on the entry tickets during the period from 20th September 2004 to 1st March 2005. The AAI granted the Assessee the authority to collect service tax by a letter dated 2nd March 2005 whereupon the Assessee got itself registered and started collecting service tax from 2nd March 2005 onwards. The fact that the Assessee has been collecting and depositing the service tax on entry tickets sold by it with the Government from 2nd March 2005 is not in dispute. 6. After the Assessee obtained registration it was issued summons on 31st May 2005 by the Departm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....month-wise sales and service tax collected/deposited from all the sites from 10th September 2004 to March 2005. 11. The SCN dated 4th March 2008 was issued to the Assessee for its failure to collect service tax during the period from 10th September 2004 to 1st March 2005 by invoking the extended period of limitation under clause (d) of the proviso to Section 73 (1) of the FA. The specific averment to this effect is to be found in para 13.2 of the SCN which reads as under: "13.2 It further appears that the company has never disclosed the fact of providing taxable service to the department at any point of time and suppressed the facts with intent to evade payment of service tax, hence provision of Section 73 of the Act to demand service tax for an extended period of five years from the relevant date are applicable in the instant case." 12. Therefore, one of the main questions that arises in the present case is whether the Department was justified in invoking the extended period of limitation under clause (d) of the proviso to Section 73 (1) of the FA? 13. The SCN ended in an adjudication order dated 6th May 2009 being passed by the Additional Commissioner of Service Tax (ACST). I....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... CESTAT in P.C. Poulose v. Commissioner of Customs (supra) and held that the Respondent in that case being the service provider was in fact liable to pay service tax. 18. Aggrieved by the orders of the ACST as well as the CAST the Assessee went before the CESTAT. It appears that there was an issue raised by the Department regarding the maintainability of the above appeal before the CESTAT. The counsel for the Assessee filed detailed written arguments before the CESTAT on 25th November 2014 with an advance copy to the learned counsel for the Department. In para 2 of the said written submissions the Assessee adverted to the fact that it had in response to the summons dated 31st May 2005 replied to the Department by its letter dated 14th July 2005 enclosing copies of the license agreements with the AAI, the bank statements as well as details of the sale of entry tickets. A reference was also made to the subsequent summons issued on 7th November 2005 and the reply thereto on 19th November 2005. It appears that the said written submissions were not replied to by the Department. 19. Thereafter on 16th December 2014 the CESTAT passed a detailed interim order which reads as under: "Befo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....was levied by the adjudicating authority. 4. Ld. counsel for the applicant submits that there was a dispute of levy of service tax during the impugned period. Therefore, under bona fide belief they are not liable to pay the service tax. In these circumstances, the extended period of limitation is not invocable. He also submits that in the case of P.C. Paulose Vs. CCE (Appeals)s Cochin [2008 (10) STR 335 (Tri. - Bang.)], the Tribunal held that on sale of tickets to visitors, service tax is not leviable. Ld. counsel fairly admits that the said decision was reversed by the Hon'ble High Court of Kerala vide its order dated 10.07.2009 and the Hon'ble Apex court also held that the service tax is leviable on the said activity vide order dated 13.012011 [2011 (21) STR 353 (S.C.)]. In these circumstance, he pleaded as the applicant was under bona fide belief that the activity was not leviable for service tax, therefore, they did not pay the service tax during the impugned period and sought waiver of pre-deposit. 5. On the other hand, ld. Departmental Representative opposed the contentions of the ld. counsel and submitted that on merits, it is an admitted fact that during the impug....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Paulose, Sparkway Enterprises v. Commissioner of Central Excise & Customs (2011) 21 STR 353 whereas it has in fact set out para 5 of the CESTAT"s order in that case which in fact was in favour of the Assessee. This is an obvious instance of non-application of mind by the CESTAT. 23. The central issue that had to be addressed by the CESTAT was whether the Department was justified in invoking the extended period of limitation of five years in terms of Clause (d) of the proviso to Section 73 (1) of the FA. On this aspect the CESTAT appears to have failed to note certain important dates and therefore came to the erroneous conclusion that the invocation of extended period of limitation by the Department was justified. 24. It may be recalled that the period for which the SCN was issued was 10th September 2004 to 1st March 2005. In terms of Section 73 (1) of the FA which states that the period within which the Assessee had to be served the notice for failure to collect service tax was one year from 1st March 2005, i.e., 28th February 2006. Within this period a series of events took place. One was that the Appellant obtained service tax registration on 2nd March 2005 and commenced colle....