TaxTMI 
TaxTMI 
2022 (12) TMI 1143
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....ssuing the Show Cause Notice dated 28.12.2020 was held justified. 2. The facts in brief are that the appellant admittedly was providing the taxable service as that of "Business Auxiliary Service" on commission basis who had collected huge amount from various persons/companies/organizations etc. during the period from 01.10.2014 to 30.06.2017, however, has not discharged the service tax liability thereupon. With these allegations, the service tax amounting to Rs.9,09,689/- along with the interest and the penalty was proposed to be recovered from the appellant. Proposal has been confirmed by both the adjudicating authorities below. 3. I have heard Ms. Jwaria Kainaat, learned Advocate for the appellant and Ms. Tamanna Alam, learned Autho....
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....ngly, Appeal is prayed to be dismissed. 6. Having heard the rival contentions, perusing the entire records. It is observed and held as follows: 6.1 It is an admitted case of the appellant that the appellant did not get itself registered under Service Tax Commissionerate during the period in question while providing the impugned "Business Auxiliary Services" on commission basis. It has also been acknowledged while making submissions that the issue of services in question being taxable is no more res integra. I also rely upon the decision of this Tribunal in the case of Ved Automotives Vs. Commissioner of Central Excise, Kanpur reported as 2016 (44) S.T.R. 140 (Tri.-All.), wherein a reference has been answered holding that the activity ....
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....d to invoke the extended period. No doubt mere non-disclosure of fact will not be such suppression as may entitle the department to invoke this provision except where there is an intent to evade the duty. From the above observed admission of the appellant, it is clear that appellant was not paying the service tax to the department despite providing the taxable service. It is also nowhere denied that even the service tax registration was not obtained. I also observe that no reply to the show cause notice was served till a letter dated 12.07.2021 was sent to the original adjudicating authority. However, the perusal thereof shows that the appellants have specifically conveyed about unawareness for their liability of service tax towards the amo....
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.... suppression. When the Revenue invokes the extended period of limitation under Section 73(1) of the Finance Act, 1994 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 any incorrect statement with the knowledge that the statement was not correct. Though the proviso to Section 73(1) of the Finance Act, 1994 carves out an exception and permits the authority to exercise their power recovery within 5 years from the relevant date in the circumstances in the proviso, one of it being suppression of facts. 10. I also rely upon the decision of Hon'ble Supreme Court in the case of Pushpam Pharmaceuticals Company Vs. Collector of C.Ex., Bombay ....
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.... intent to evade duty. The next set of words "contravention of any of the provisions of this Act or rules" are again qualified by the immediately following words "with intent to evade payment of duty". It is, therefore, not correct to say that there can be a suppression or mis-statement of fact, which is not wilful and yet constitutes a permissible ground" for the purpose of the provision for invoking extended period of limitation. It was clarified that for going beyond the normal period of limitation while issuing show cause notice, mis-statement or suppression of fact must be wilful." 12. It is also observed that the present show cause notice was issued based upon the information received from the Income Tax Department. It becomes clea....