TaxTMI 
TaxTMI 
2023 (2) TMI 613
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.... (formerly known as 'Emaar MGF Land Limited'), had filed the aforementioned appeal before the learned Tribunal impugning an order-in-original dated 31.01.2017 passed by the Commissioner, Service Tax (hereafter 'the Commissioner'), whereby the Commissioner had confirmed a demand of Rs.2,44,48,095/- (Rupees two crores forty four lacs forty eight thousand and ninety five only) and had ordered recovery of the said amount, as being inadmissible Cenvat Credit under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 73(2) of the Finance Act, 1994 (hereafter 'the Act'). In addition, the Commissioner had ordered recovery of interest under Section 75 of the Act. The Commisioner had also imposed penalty of an equivalent amount of Rs.2,44,48,095/- under Section 78 of the Act and a penalty of Rs.10,000/- for failing to file the correct ST-3 returns, disclosing the taxable income and Cenvat Credit in accordance with the provisions of Section 70 of the Act. 3. The aforesaid order-in-original was passed pursuant to a show cause notice dated 17.04.2014 issued by the Commissioner. The Tribunal found that the show cause notice was beyond the period as prescribed under Section 73(1) of the ....
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.... 65(105)(zzzh) of the Act as introduced by the Finance Act, 2010. Thus, according to the Revenue, the services rendered by the respondent were not taxable at the material time, and it could not claim any Cenvat Credit in respect of input services for discharging its liability. Consequently, the respondent was required to refund the same along with interest. The Revenue claimed that the respondent could not have collected the service tax in respect of services that were not taxable. Nonetheless, it was obliged under the provisions of Section 73A of the Act to deposit any amount collected as service tax. 8. In the given context, the Revenue has projected the following questions for consideration of this Court: "I) Whether the availment of Cenvat credit and its utilization for payment of service tax on construction of flats for sale to buyers even though the activity to develop residential colonies and commercial properties were exempt from service tax vide Notification No.24/2010 dated 22.06.2010, is in contravention of provisions of Rule 3 read with Rule 2(1) and 2(p) of the Cenvat Credit Rules, 2004? II) Whether the extended period of limitation is invokable co....
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....of a non-existent liability to pay tax 12. However, if a person collects any amount representing it as service tax, which is otherwise not to be collected, he is obliged to deposit that amount - in terms of Section 73A(2) of the Act - to the Credit of the Central Government. This amount is required to be credited to the Consumer Welfare Fund referred to in Section 12C of the Central Excise Act, 1944. The amount so deposited cannot be considered as deposit of tax; it is the deposit of an amount, which although collected as service tax, is not service tax. 13. It is important to note that in the present case, the learned Commissioner had dropped the demand of Rs.2,44,48,095/- under Section 73A of the Act. As noted above, the Revenue had not filed any appeal against the order-in-original and had accepted the said order. Thus, no demand can now be raised on the ground that the respondent had not deposited the entire amount collected from its customers as service tax, under Section 73A(2) of the Act. If the Revenue's contention is accepted that the services rendered by the appellant were not chargeable to tax at the material time, the Revenue may have been justified in demanding t....
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....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 thirty months 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 rules made thereunder with intent to evade payment of service tax, by the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as if, for the words "thirty months", the words "five years" had been subs....
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....tations of statutory provisions. Once an assessee has truly disclosed the facts, it would not be apposite to invoke the provisions of Section 73(1) of the Act only on the ground that the assessee has classified its services under a head which the revenue considers erroneous. However, if such classification is, ex facie, untenable and done with the intent of evading any liability, the provisio to section 73(1) of the Act, would be applicable. If the assessee's interpretation of the statutory provision is a reasonable one and the assessee has disclosed material facts, it would be erroneous to apply the proviso to Section 73(1) of the Act on account of mis-declaration or suppression of facts. 22. The learned Tribunal had found that there was no suppression of facts in the present case. The learned Tribunal also faulted the order-in-original inasmuch as the Commissioner had held that it was possible to invoke the extended period even where the assessee had no intent to evade payment of service tax. 23. In Pushpam Pharmaceutical Company v. Collector of Central Excise, Bombay: 1995 Supp (3) SCC 462, the Supreme Court had interpreted the proviso to Section 11A of the Central Excise ....
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....usion, wilful misstatement". As explained in Uniworth (supra), "misstatement or suppression of facts" does not mean any omission. It must be deliberate. In other words, there must be deliberate suppression of information for the purpose of evading of payment of duty. It connotes a positive act of the assessee to avoid excise duty. xxxx Thus, invocation of the extended limitation period under the proviso to Section 73(1) does not refer to a scenario where there is a mere omission or mere failure to pay duty or take out a license without the presence of such intention." xxxx The Revenue has not been able to prove an intention on the part of the Appellant to avoid tax by suppression of mention facts. In fact it is clear that the Appellant did not have any such intention and was acting under a bonafide belief." (emphasis added) 26. In Continental Foundation Joint Venture Holding, Nathpa H.P. v. Commissioner of Central Excise, Chandigarh: 2007 (216) E.L.T. 177 (SC), the Supreme Court held as under: "12. The expression "suppression" has been used in the proviso to Section 11A of the Act accompanied by very strong words as 'fraud' o....