AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (4) TMI 435
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....itization, asset reconstruction and security deposits under the category of 'business support service' [BSS] and 'online information and database access or retrieval service' [OIDARS]. 3. The appellant, a company incorporated under section 8 of the Companies Act, was set up by the Central Government by a notification dated 31.03.2011 as a central registry in terms of section 20 of The Securitisation and Reconstruction Financial Assets and Enforcement of Securities Interest Act, 2002 [SARFAESI Act]. The appellant was incorporated on 05.03.2011 with an objective of operation and maintenance of a 'registration system' for the purpose of registration and maintenance of public records of all the transactions of securitization, asset reconstruction of financial assets and creation of security interest in relation to any property of any bank or any financial institution, as contemplated under Chapter IV of the SARFAESI Act. To achieve purpose, the appellant provided an online platform for the aforesaid registration and for such registration of transactions as well as for the search of records maintained by the appellant, a fee was collected from the banks/financial institutions in terms ....
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....setting aside the impugned order. The first is that to the extended period of limitation under the proviso to section 73(1) of the Finance Act could not have been invoked in the facts and circumstances of the case and the second is that service tax cannot be proposed and confirmed under two different heads of service for one single activity. These two issues are, therefore, being considered. Extended period of limitation 9. The contention of the learned counsel for the appellant is that the necessary ingredients for invoking the larger period of limitation contemplated under the proviso to section 73 (1) of the Finance Act, namely wilful suppression of facts with an intent to evade payment of service tax, do not exist and, therefore, the extended period of limitation could not have been invoked. 10. In order to appreciate this contention, it would appropriate to reproduce section 73 of the Finance Act as it stood at the relevant time. This section deals with recovery of service tax not levied or paid or short levied or short paid or erroneously refunded and it is as follows; "73.(1) Where any service tax has not been levied or paid or has been short-levied or short-paid or err....
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....ent to evade payment of service tax. 14. In Pushpam Pharmaceutical Co. vs. Commissioner of Central Excise, Bombay [1995 (78) E.L.T. 401 (SC)], the Supreme Court examined whether the Department was justified in initiating proceedings for short levy after the expiry of the normal period of six months by invoking the proviso to section 11A of the Excise Act. The proviso to section 11A of the Excise Act carved out an exception to the provisions that permitted the Department to reopen proceedings if the levy was short within six months of the relevant date and permitted the Authority to exercise this power within five years from the relevant date under the circumstances mentioned in the proviso, one of which was suppression of facts. It is in this context that the Supreme Court observed that since "suppression of facts' has been used in the company of strong words such as fraud, collusion, or wilful default, suppression of facts must be deliberate and with an intent to escape payment of duty. The observations are as follows; "4. Section 11A empowers the Department to re-open proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the ....
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....id not have any such intention and was acting under a bonafide belief." (emphasis supplied) 16. It would be useful to examine how this aspect has been considered in the show cause notice and the order passed by the Commissioner. 17. The show cause notice, while invoking the extended period of limitation, states: "7. Whereas it further appears that the assessee by doing so, had intentionally and willfully suppressed the facts of receipt of payment with intent to evade payment of Service Tax and did not pay the due amount of Service Tax as applicable on such services and did not file prescribed ST-3 returns. Thus, by not disclosing the entire facts to the Department, the said value has escaped the assessment for Service Tax liability, resulting into contravention of various provisions of the said Act and the said Rules mentioned aforesaid due to the assessee's intention to evade payment of impugned Service Tax. The fact of rendering of these services would not have come to the notice of the department but for the inquiry conducted by the department. Thus, it appears that the proviso to Section 73(1) of the Act ibid can be invoked and demand and recovery can be made for non....
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....any of the ingredients mentioned in the proviso to section 73(1) of the Finance Act and the relevant paragraph is reproduced below: "16. The appellants also contested the demand wherever issued invoking extended period of time. Proviso to Section 73(1) can be invoked only, where the Service Tax has not been paid or levied or short-paid or short levied, by reason of fraud; or collusion; or wilful misstatement; or suppression of facts; or contravention of any of the provisions of Chapter V of Finance Act, 1994 or rules made thereunder with intent to evade payment of Service Tax by the person chargeable with Service Tax. If any one of the ingredients are present, then the demand for not paid or short paid Service Tax can be made invoking extended period of limitation of 5 years, from the relevant date. Admittedly, the appellants are a Government Organisation; their functions are regulated by the said enactment and the rules. In such situation, it is clear that there will be a rebuttable presumption regarding non-existence of any of these ingredients on the part of the appellant. We have perused the reasons recorded by the lower authorities to sustain the demand for longer period. We....