TaxTMI 
TaxTMI 
2018 (8) TMI 1690
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....3 has already been discussed in preceding para and it has been held that the proviso is rightly invocable. However considering the fact that the noticees are a state government undertaking and the benefit of evasion of service tax would not go to any private person of company and also that they have already deposited Rs. 68 lakh voluntarily, I am inclined to accept the plea of the noticees that there was reasonable cause for failure to pay tax. It has been held in several cases that even if the proviso to section 73 for extending the period of demand on account of suppression of fact etc is invoked the waiver under section 80 can still be given. I therefore extend the benefit of section 80 of the Finance Act, 1994 and waive penalty under Section 76, 77 and 78 of the Act." 4. Tribunal in its number of cases observed that where the penalty under Section 80 of the Act has not been imposed by extending the bona fide belief on the part of the appellant, the extended period would not be invokable in as much as the same ingredients are required for invocation of extended period of limitation. Such references can be made in the case of Sankhla Udyog Vs. CCEST, Jaipur [2015 (38) ST....
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.... Regn. Fees for Hydel project 0 0 50000 Wind Mast Application fees 40000 160000 140000 Ser. Charges (SWH System) 0 0 6000 Gross value 37415000 25505000 65919750 Net Taxable value 33951906 222723628 58668343 ST Rate 10.20% 12.24% 12.36% Service Tax 3463094 2781372 251407 Total Service Tax payable 13495873/- 6. However, on scrutiny of the balance sheet as supplied by M/s. RRECL, Jaipur it was found that some of the entries were not considered for the purpose of calculation of Service Tax by the noticees. Therefore the correct service tax was calculated as given in the table below: S. No. Head 2004-05 (1.10.04 onwards) 2005-06 2 006-07 2007-08 2008-09 1. Application Fees 30000 50000 150000 100000 1300012 2. Processing fees for solar point plant 0 0 0 1500000 34625000 3. Application Fees Biomass power project 250000 37500 1950000 0 0 4. Processing fees for biomass power plant 0 4580000 0 1632500 2....
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.... 22. As regards invocation of extended period the noticee have submitted that extended period is not available to the department as there was no suppression of fact and they were under bonafide belief that they were not liable to pay service tax on the inpugned activities. I find that there has been a deliberate act by the noticee to the suppression the information in as much as they did not take registration, did not pay service tax and also did not file any returns. It was only when the department collected information that the evasion was unearthed. Suppression means failure to disclose full information with the intent to evade payment of duty as held by Hon'ble Supreme Court in case of Continental Foundation Jt. Venture vs CCE Chandigarh- I [2007 (216) ELT 177 S.C.) Similarly Hon'ble CESTAT in case of Chemfab Alkalis Ltd. vs CCE Pondichery [2010 (25l) E.L.T.264Tri.- Chennai held: "It cannot be a case of anybody that since all the excisableunits are being audited by the department from time to time, the extended period of limitation will not apply in respect of any unit. Such an interpretation would render the relevant legal provision regarding application extended perio....
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....section 73 for extending the period of demand on account of suppression of fact etc is invoked the waiver under section 80 can still be given. I therefore extend the benefit of section 80 of the Finance Act, 1994 and waive penalty under section 76,77 and 78 of the Act." 4. Counsel for appellant has relied upon in the following decisions: 1. Tamil Nadu Housing Board vs. Collector of Central Excise, Madras, 1994 (74) ELT 9 (SC), wherein it has been observed as under: Section 11A of the Act empowers the Central Excise officer to initiate proceedings where duty has not been levied or short-levied within six months from the relevant date. But this period to commence proceedings under proviso to the Section stands extended to five years of the duty could not be levied or it was short-levied due to fraud, collusion, wilful misstatement or suppression of facts etc. The proviso to Section 11A reads as under: "Provided that where any duty of excise has not been levied or. paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions o....
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....e that the appellant was intentionally evading payment of duty. When the appellant was found not to have been making any profit and it had taken out licence for concrete unit then in absence of any other material to prove any deliberate act of the appellant the presumption of reasonable doubt of the appellant cannot be said to have been successfully rebutted. The finding of the Tribunal that there was an intention on the part of the appellant to evade payment of duty, is not based on any material. It was an inference drawn for which there was no basis." 2. Padmini Productys vs. Collector of C. Ex., 1989 (43) ELT 195 (S.C), wherein it has been observed as under: "8. Shri V. Lakshmi Kumaran, learned Counsel forhe appellant drew our attention to the observations of this Court in Collector of Central Excise, Hyderabad v. Chemiphar Drugs and Liniments, Hyderabad MANU/SC/0112/1989 : [1990]184ITR224(SC) of the report, this Court observed that in order to sustain an order of the Tribunal beyond a period of six months and up to a period of 5 years in view of the proviso to Subsection (1) of Section 11-A of the Act, it had to be established that the duty of excise had not b....
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....ation, i.e., 55/75, being handicrafts, the appellants could not be held to be guilty of the fact that excise duty had not been paid or short-levied or shortpaid or erroneously refunded because of either any fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder. These ingredients postulate a positive act. Failure to pay duty or take out a licence is not necessarily due to fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act. Suppression of facts is not failure to disclose the legal consequences of a certain provision. Shri Ganguly, appearing for the revenue, contended before us that the appellants should have taken out a licence under Rule 174 of the said Rules because all the goods were not handicrafts and as such were not exempted under notification No. 55/75 and, therefore, the appellants were obliged to take out a licence. The failure to take out the licence and thereafter to take the goods out of the factory gate without payment of duty was itself sufficient, according to Shri Ganguly, to infer that the appellants came within the mischief o....
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....odify the demand by confining it to the period of six months prior to issue of show-cause notice and pass consequential orders in the appeal on the question of penalty and confiscation. The appeal is allowed to the extent indicated above and the matter is, therefore, remanded to the Tribunal with the aforesaid directions. This appeal is disposed of accordingly." 3. Collector of Central Excise vs. Chemphar Drugs & Liniments, 1989 (40) ELT 276 (S.C.), wherein it has been observed as under: 8. Aggrieved thereby, the revenue has come up in appeal to this Court. In our opinion, the order of the Tribunal must be sustained. 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 11A 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 thereunder, with intent to evade payment of duty. Something positive other than mere inaction or failure on the part....
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....ular stand which rules out application of Section 11A of the Act. 5. Uniworth Textiles Ltd. vs. Commissioner of Central Excise, Raipur, 2013 (288) ELT 161 (SC), wherein it has been observed as under: 21. The Revenue contended that of the three categories, the conduct of the Appellant falls under the case of "willful misstatement" and pointed to the use of the word "misutilizing" in the following statement found in the order of the Commissioner of Customs, Raipur in furtherance of its claim: The noticee procured 742.51 kl of furnace oil valued at Rs. 54,57,357/- without payment of customs duty by misutilizing the facility available to them under Notification No. 53/97-Cus. dt. 3.6.1997. 22. We are not persuaded to agree that this observation by the Commissioner, unfounded on any material fact or evidence, points to a finding of collusion or suppression or misstatement. The use of the word "willful" introduces a mental element and hence, requires looking into the mind of the Appellant by gauging its actions, which is an indication of one's state of mind. Black's Law Dictionary, Sixth Edition (pp 1599) defines "willful" in the following mann....