TaxTMI 
TaxTMI 
2018 (5) TMI 223
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....operative Societies Act, 1949, carrying on banking business as defined under Section 5(b) of the Banking Regulation Act, 1949. Certain activities of the petitioner were made exigible to service tax under Banking and other Financial Services under Section 65(12) r/w Section 65(105)(zm) r/w Section 66 of the Act, upto 30.6.2012. Said activities continued to be taxable for the period post 30.6.2012 under Section 65B(44) r/w Section 66-B of the Act. Petitioner had obtained service tax registration on 30.10.2004. 3. Petitioner was subjected to service tax audit, conducted by Service tax at Commisionerate, Bangalore pursuant to audit, respondent No.5 informed the petitioner that Cenvat credit of Rs. 32,58,179/- was payable along with applicable interest and penalty which was accordingly paid, totally aggregating to Rs. 58,08,851/-. It is the contention of the petitioner that immediately realizing that the petitioner was liable to pay Cenvat credit of Rs. 9,69,565/-, interest of Rs. 3,68,456/-, aggregating to Rs. 13,38,021/- (with penalty) instead of Rs. 58,08,581/, requested respondent No.5 to refund the excess amount of Rs. 44,70,830/- paid or alternatively to issue a show cause noti....
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....ned counsel submitted that the petitioner had specifically contended in the reply dated 24.3.2016 (Annexure-D1), payment of service tax was made under protest and had requested to assess the petitioner relating to the period in question. However, respondent No.4 while issuing Annexure-E dated 28.7.2016 lost sight of these replies submitted by the petitioner and proceeded to conclude the proceedings referring to second proviso to Section 78(1) which is not applicable to the facts of the present case. In support of his contentions, learned counsel has placed reliance on the following Judgments: 1. COLLECTOR OF CUSTOMS, CALCUTTA VS. TIN PLATE CO. OF INDIA LTD., 1996 (87) ELT 589 (SC) 2. EAST INDIA COMMERCIAL CO. LTD., CALCUTTA VS. COLLECTOR OF CUSTOMS, CALCUTTA 1983 (13) ELT 1342 (SC) 3. TRANSWORLD GARMENT INDIA PVT. LTD., VS. COMMR. OF EX. TUTICORIN, 2016 (45) STR 499 (MAD.) 4. LARSEN & TOURBO LTD., VS. COMMISSIONER OF C.EX., PUNE-II, 2007 (211) ELT 513 (SC) 5. RAJ BAHADUR NARAIN SINGH SUGAR MILLS LTD., VS. UNION OF INDIA, 1996 (88) ELT 24 (SC) 6. COLLECTOR OF CENTRAL EXCISE VS. HMM LIMITED, 1995 (76) ELT 497 (SC) 7. UNIWORTH TEXTILES LTD., VS. COMMISSIONER OF CE....
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....8 months from the relevant date after issuing show cause notice. Proviso to Section 73(1) contemplates that where the service tax is liable to be paid by reason of: a. fraud; or b. collusion; or c. willful mis-statement; or d. suppression of facts; or e. contravention of any of the provisions in Chapter V or the Rules made thereunder with intent to evade payment of service tax, recovery can be made for a period of five years. 9. In the case of LARSEN AND TOUBRO LTD., supra, the Hon'ble Apex Court has held that the acts of fraud or suppression, it is well settled, must be specifically pleaded, the allegation in that regard to the suppression of facts must be clear and explicit so as to enable the noticees as to reply thereto effectively. It was not the case of the Revenue that the activities of the appellant were not known to it. Admittedly when the first show cause notice was issued, the extended period of limitation was not resorted to. A notice should ordinarily be issued within a period of 6 months (as the law then stood) i.e., within a prescribed period of limitation but only in exceptional cases, the said period could be extended to 5 years. When in the o....
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....ess the assessee is put to notice, the assessee would have no opportunity to meet the case of the department. The defaults enumerated in the proviso to said sub-section are more than one and if the excise department places reliance on the proviso it must be specifically stated in the show cause notice which is the allegation against the assessee falling within the four corners of the said proviso. In the absence of the same, the Additional Collector was not justified in inferring an intention to evade the payment of duty. 12. Instruction F No.137/46/2015-ST dated 18.08.2015 issued by the Central Board of Excise Customs, clarifies whether a show cause notice have to be issued in a case involving the extended period of limitation, where the assessee pays the tax/duty, interest and 15% penalty as prescribed in Clause2.3 of the said clarification, it is made clear that if the grounds on which the department feels that there has been short/non-payment of tax/duty are intimated to the assessee orally with its quantification and the assessee indicates in writing that he has been informed about such grounds and he accepts the grounds and the quantification, is waiving the requirement of....
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.... contemplates that nothing contained in sub-section (3) shall apply to a case where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of five clauses enumerated in the proviso to Section 73[1]. 16. On reading of these provisions, it is clear that extended period of limitation of five years is available only in cases where the omissions or commissions enumerated in proviso to Section 73[1] are alleged. Section 73[4] further makes it clear that clauses enumerated in the proviso to Section 73[1] would not fall within the ambit of section 73[3]. Thus, tax, interest and penalty cannot be collected for five years period without alleging omission/commission of the clauses enumerated under the proviso to Section 73[1]. It is mandatory to allege, discharge burden of proof under the proviso to Section 73[1] before the tax can be collected for five years. Admittedly, in the present case, tax, interest and penalty of 15% has been collected for the period 1.4.2010 to 31.03.2016. The copies of service tax returns filed half yearly before the service tax department evinces the fact that petitioner had informed designated Office....
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....as such limitation for the extended period is not invokable unless show cause notice puts the Assessee to notice specifically as to various commissions/omissions stated in the proviso to Section 73[1] of the Act had been committed. 19. Section 78 of the Act deals with penalty for failure to pay service tax for reasons of fraud, etc. Section 78(1) of the Act provides that where any service tax has not been levied or paid, or has been short-levied or short-paid, or erroneously refunded, by reason of fraud or collusion or willful mis-statement or suppression of facts or contravention of any of the provisions of Chapter-V or of the rules made thereunder with the intent to evade payment of service tax, the person who has been served notice under the proviso to sub-section (1) of section 73 shall, in addition to the service tax and interest specified in the notice, be also liable to pay a penalty which shall be equal to hundred per cent of the amount of such service tax. Second proviso thereof contemplates that where service tax and interest is paid within a period of thirty days of the date of service of notice under the proviso to sub-section (1) of section 73, the penalty payable s....