TaxTMI 
TaxTMI 
2022 (8) TMI 498
X X X X Extracts X X X X
X X X X Extracts X X X X
....ds services' & 'Business Support Services' Differential Service Tax recoverable under WCS 1. 2008-09 (Oct' 08- Mar'09) 4566249 281665* 4284584 2. 2009-10 6815832 1560307 5255525 3. 2010-11 8220293 2172705 6047588 4. 2011-12 4798100 3100427 1697673 5. 2012-13 3891543 3884130 7413 Total 28292017 10999234 1,72,92,783/- Demolishing Financial Year Receipt (Demolition charges Rate of S. Tax Service Tax payable 2011-12 1,10,00,000/- 10.30% 11,33,000/- 2012-13 5,00,000/- 12.36% 61,800/- Total 1,15,00,000/- - 11,94,800/- Inadmissible CENVAT Credit S. No. Date of Credit Name of Party Inadmissible Credit (Including Cess) Reason for inadmissibility 1. 22.12.2008 Vishal & Associates 3151 Original Invoice not available. Photocopy does not contain invoice no. & ST registration. / Invoice issued in name of Mr. Jairam Jalan, prop. Reciprocal Impex Ltd. i.e. not in the name of registered assessee. 08.02.2009 618 18.08.2009 721 01.09.2009 3708 02.01.2011 6379 11.01.2011 7354 04.0....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f service tax for the period which is within the normal period of 18 months from the relevant date may be confirmed. 4. It transpires from the aforesaid charts that the service tax liability which is within the normal period is of Rs.7,413/- for the works contract, Rs.61,800/- for demolishing and Rs.2,127/- for inadmissible CENVAT credit. The show cause notice seeks to invoke the extended period of limitation under the proviso to section 73 (1) of the Finance Act in the following terms:- "3.11 Now, it appears that the party has short paid service tax on Works Contract Service and they are liable to pay service tax Rs.1,72,92,783/- on works contract services, as discussed in foregoing paras, during the period from 2008-09 (Oct'08-Mar'09) to 2012-13 and the same is recoverable under proviso to Section 73(1) of the Finance Act, 1994. They are also liable to pay interest at appropriate rates under Section 75 of the Act ibid. 3.12 And whereas, the party submitted their ST-3 returns for the period 2008-09 (Oct'08 -Mar'09) to 2012-13 without showing the taxable amount under 'Works Contract Service' and they have not paid any service tax on works contract by su....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... ST-3 returns filed to the department and as a result they have short paid service tax to the tune of Rs 11,94,800/-. Thus, it appears that the party has willfully suppressed the taxable value received for 'demolition services' from the knowledge of the department during the financial year 2011-12 and 2012-13 with intent to evade service tax payment. Therefore, proviso to Section 73(1) of the act for invocation of extended period is applicable for recovery of short paid service tax to the tune of Rs 11,94,800/- from the party. Therefore, for their above act of omission and commission, the party has rendered themselves liable for penalty under Section 78 of the Finance Act, 1994 for contravention of Section 68 of the Act ibid read with Rule 6 of the Service Tax Rules, 1994. 5.3 And whereas, it appears that the party has availed inadmissible CENVAT credit of capital goods / input services in contravention of Rule 9 of the CENVAT Credit Rules, 2004 with intent to evade payment of service tax. They availed CENVAT credit, which is not admissible to them for reasons like they availed CENVAT credit without having the original / photocopy of invoices, invoices issued to other pa....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression." (emphasis supplied) 8. It is, therefore, clear that the suppression of facts should be deliberate and in taxation laws it can have only one meaning, namely that the correct information was not disclosed deliberately to escape payment of duty. 9. This decision of the Supreme Court in Pushpam Pharmaceuticals was followed by the Supreme Court in Anand Nishikawa Co. Ltd. vs. Commissioner of Central Excise, Meerut [(2005) 7 SCC 749] and the relevant paragraph is as follows:- "27. Relying on the aforesaid observations of this Court in the case of Pushpam Pharmaceuticals Co. v. CCE 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....