TaxTMI 
TaxTMI 
2023 (3) TMI 581
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....ncluded in the value of room rent and the petitioner ought to have paid service tax on these charges under "Short Term Accommodation Services". While so, show cause notice, dated 16.10.2015 was issued by the Commissioner of Central Excise, Tirunelveli, whereby, the Petitioner was directed to show cause as to why service tax of Rs.15,28,564/- (Rupees Fifteen Lakhs Twenty Eight Thousand Five Hundred and Sixty Four only) for the period 2010-2011 to 2014-2015 under Proviso to Section 73(1) of Finance Act, 1994, should not be demanded. 3. The constitutional validity for levy of service tax on accommodation service provided by hotel, guest house etc., was challenged by the Federation of Hotels and Restaurants Association of India before the Delhi High Court. The Delhi High Court in the case of Federation of Hotels and Restaurants Association of India Vs Union of India reported in 2016 (44) STR 3 (Del) held that in the absence of machinery provision for levy and collection of tax on accommodation, the levy does not survive and no tax is payable. The Court in paragraph 77(ii) struck down Section 65(105)(zzzw) of Finance Act, 1994 pertaining to levy of service tax on the provision of "Sh....
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....of the rules made thereunder with intent to evade payment of service tax. 6. To the contrary, the learned Senior Standing Counsel for the Respondent sought to sustain the impugned order by submitting that the extended period of limitation would enable the revenue to issue notice within five years from the relevant date. In any event, there is an alternate remedy by way of appeal. In this regard, reliance was sought to be placed on the following judgments: (a) Kuttukaran Trading Ventures Vs Commissioner of Central Excise, Customs and Service Tax, Cochin reported in 2014 (35) STR 481 (Ker). (b) Master Marine Services Private Limited Vs Commissioner of Service Tax, Mumbai, The CESTAT, West Zonal Bench reported in 2014 (35) STR 79(Tri). 7. Assuming the levy is valid, the impugned proceeding invoking the extended period of limitation cannot be sustained. To invoke the extended period, it ought to be demonstrated that service tax has not been levied or paid or has been short levied or short paid or erroneously refunded by reason of fraud or collusion or wilful mis-statement or suppression of facts or contravention of any of the provisions of this Chapter or of the....
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.... different that what is explained in various dictionaries unless of course 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 omission by one to do what he might have done and not that he must have done, does not render it suppression." (ii) State of Rajasthan v. Jaipur Udyog Ltd., reported in (1974) 3 SCC 247: "4. We are told that the Respondent is guilty of an offence falling under Section 10(b) which reads: "If any person ... being a registered dealer, falsely represents when purchasing any class of goods that goods of such class are covered by his certificate of registration...." Now the only question is whether the Respondent was guilty o....
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....lusion that the assessee has made false representation." (iii) Padmini Products v. CCE, reported in (1989) 4 SCC 275: "12....the appellant could not be held to be guilty of the fact that excise duty had not been paid or short-levied or shortpaid or erroneously refunded because of either any fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder. These ingredients postulate a positive act. Failure to pay duty or take out a licence is not necessarily due to fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act. Suppression of facts is not failure to disclose the legal consequences of a certain provision. ...As mentioned hereinbefore, mere failure or negligence on the part of the producer or manufacturer either not to take out a licence in case where there was scope for doubt as to whether licence was required to be taken out or where there was scope for doubt whether goods were dutiable or not, would not attract Section 11-A of the Act. In the facts and circumstances of this case, there were materials, as indicated to suggest that....