TaxTMI 
TaxTMI 
2022 (11) TMI 100
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....the appellant] in this appeal. 2. The appellant, as an individual person, is engaged in supplying labour. On the basis of an audit objection that the appellant had short paid service tax in respect of 'man power supply' and 'rent a cab service', a show cause notice dated 14.07.2010 was issued to the appellant by invoking the extended period of limitation contemplated under the proviso to section 73(1) of the Finance Act, 1994 [the Finance Act]. The appellant filed a reply contesting the demand raised both on merits as well as on limitation but the adjudicating authority by order dated 08.10.2012 confirmed the demand raised in the show cause notice dated 14.07.2010 for the period 2005-2006 and 2008-2009. The appeal filed by the appellant ....
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....ellant it would not be necessary to examine the issue on merits. 7. Section 73(1) of the Finance 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, is reproduced below: "SECTION 73. Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded. (1) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, 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 ....
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....tional Commissioner observed as follows: "As regards penalty, it is observed that the Noticee have mis-declared the value of services provided by them in their ST-3 returns filed from time to time. Had the same has not been detected by the department, the said value would have remained escaped from levy of service tax. Thus, it is clear that Noticee with intend to evade service tax mis declared the value of services provided, therefore are liable to penalty.*****" 10. The Commissioner (Appeals) observed as follows: "6. ***** As regards the issue that the present demand is time barred as the show cause notice has been issued after expiry of one year, I find that the Adjudicating authority has correctly invoked the extend....
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....rs from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. It is in this context that the Supreme Court observed:- "2. ****** The Department invoked extended period of limitation of five years as according to it the duty was short-levied due to suppression of the fact that if the turnover was clubbed then it exceeded Rupees Five lakhs. ******** 4. A perusal of the proviso indicates that it has been used in company of such strong works as fraud, collusion or willful 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 deliber....
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.... not to disclose the correct information or to evade payment of duty, it was not open to the Central Excise Officer to proceed to recover duties in the manner indicated in the proviso to Section 11-A of the Act. We are, therefore, of the firm opinion that where facts were known to both the parties, as in the instant case, it was not open to CEGAT to come to a conclusion that the appellant was guilty of "suppression of facts." (emphasis supplied) 15. The aforesaid decisions of the Supreme Court were relied upon by the Supreme Court in Uniworth Textiles Ltd. vs. Commissioner of Central Excise, Raipur [2013 (288) E.L.T. 161 (SC)] and the relevant portion of the judgment is reproduced below: "12. We have heard both sides, Mr. R.P....