TaxTMI 
TaxTMI 
TaxTMI 
2020 (4) TMI 382
X X X X Extracts X X X X
X X X X Extracts X X X X
....tate of Madhya Pradesh for a period of three years upto 4 July, 2008. This contract was extended initially upto 30 July, 2009 and thereafter upto March, 2011 on the same terms. 3. It is with effect from 1 June, 2007 that any service provided or to be provided to any person, by any other person in relation to mining or mineral oil or gas was made a taxable service under Section 65 (105)(zzzy) of the Act. The Appellant claims that it was not aware that mining had became a taxable service till January, 2011, when it entered into another contract with the State Corporation for mining at Hirapur mines in District Sagar. 4. A Show Cause Notice dated 03 October, 2012 was issued to the Appellant mentioning therein that the Appellant had not paid service tax on receipts from taxable service provided by it at Meghnagar mines during the period 1 June, 2007 to 31 March, 2011. It was stated that the Appellant should have got itself registered with the Department in June, 2007 and should have paid the service tax on the receipts from the State Corporation, but it did not. It was further stated in the Show Cause Notice that when the Appellant was awarded another contract for mining at Hirapur m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....07 only in January, 2011 when another contract was executed with the State Corporation for mining at Hirapur, and therefore, the Department cannot urge that the Appellant had not paid service tax by reason of wilful suppression of facts with an intent to evade payment of service tax. In support of this contention, learned Counsel placed reliance upon decisions of the Supreme Court in Pushpam Pharmaceutical Co. vs. Commissioner of Central Excise, Bombay 1995(78) ELT 401(SC), and Uniworth Textile Limited vs. Commissioner of Central Excise, Raipur 2013(288) ELT 161 (SC), and the decision of the Delhi High Court in Bharat Hotels Limited vs. Commissioner of Central Excise (Adjudication) 2018 (12) GSTL 368 (Del.). 7. Shri R K Manjhi, learned Authorised Representative of the Department has, however, submitted that the extended period of limitation was correctly invoked in the present case as there was wilful suppression of facts with an intent to evade payment of service tax. In this connection learned Authorised Representative of the Department placed reliance upon the statement made by Rajkumar Vijay Pal Singh, proprietor of the Appellant on 18 August, 2011 that the Appellant had provi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n of five years, because admittedly the Show Cause Notice was issued on 3 October, 2012 for the period 1 June, 2007 to 31 March, 2011. 11. In this connection it would be appropriate, at this stage, to reproduce Section 73 of the Act which deals with recovery of service tax not levied or paid or short levied or short paid or erroneously refunded as it stood at the relevant time. It is as follows; 73.(1) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: PROVIDED 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- (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rule....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s "wilful", nor does the Show Cause Notice mentions that suppression was with an intent to evade payment of service tax. 16. The Commissioner, as is clear from the extract of the order reproduced above, observed that since the Appellant had obtained registration in January, 2011 for mining services provided by the Appellant at the mines at Hirapur, the Appellant cannot feign ignorance that the service provided by it to the State Corporation at Meghnagar mines was not taxable and it is only after investigation that the Appellant got itself registered in July, 2011. The Commissioner, therefore, observed that there was a deliberate attempt on the part of the Appellant to avoid payment of service tax since it had earlier got itself registered for the mining services at Hirapura in January, 2011. The Commissioner has also, it needs to be observed not recorded any finding that the suppression by the Appellant was wilful. 17. It is in this background that the contention of learned Counsel for the Appellant that the extended period of limitation could not have been invoked in the present case has to be examined. 18. It is correct that Section 73 (1) of the Act does not mention that supp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ate and with an intent to escape payment of duty. The observations are as follows; "4. Section 11A empowers the Department to re-open proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. The meaning of the word both in law and even otherwise is well known. In normal understanding it is not different that what is explained in various dictionaries unless of court the context in which it has been used indicates otherwise. A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or wilful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omissi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dation Joint Venture Holding vs. Commissioner of Central Excise, Chandigarh-I 2007 (216) ELT 177 (SC) held: "10. The expression 'suppression" has been used in the proviso to Section 11A of the Act accompanied by very strong words as 'fraud' or "collusion" and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11-A the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equated with a willful misstatement. The latter implies making of an incorrect statement with the knowledge that the statement was not correct." 24. The Delhi High Court in Bharat Hotels Limited also examined at length the issue relating to the extended period of limitation under the proviso to Section 73 (1) of the Act and held as follows; "27. Therefore, it....