TaxTMI 
TaxTMI 
2023 (10) TMI 501
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....nder the category of 'outdoor catering' service, defined under Section 65(76a) read with Section 65 (105) (zzt) of the Finance Act, 1994. During the disputed period, the appellant had entered into the agreements with Indian Institute of Technology (IIT), Kanpur for providing the mess services. The salient features in both the agreements, relevant for consideration of the present dispute are itemized herein below: "(i) Agreement dated 06.08.2007 (for the period July 2007 to November 2009) a. The mess premises comprising cooking and dining facilities, furniture, food/raw material containers, utensils, electricity and water shall be provided by the Institute free of cost. b. Raw material, food articles, cooking fuel, clearing/washing, materials/tools and man power shall have to be arranged by the contractor at his cost. c. Contractor shall ensure that sufficient man power is deployed for preparation and service of each meal including cleaning, washing and overall upkeep of mess assets and premises. d. Persons, other than the hostel residents, may also be allowed to use the mess facility by buying coupons. The responsibility of issuing coupo....
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....17.10.2013 and 23.10.2012 were adjudicated by the learned Joint Commissioner of Service Tax-IV, Mumbai vide Order-in-Original dated 05.05.2016. In respect of the SCN dated 17.10.2013, the learned adjudicating authority had confirmed service tax demand of Rs.9,11,946/- along with interest and also imposed penalties under Sections 76 and 77 ibid. With regard to the SCN dated 23.10.2012, the adjudication order had confirmed service tax demand of Rs.21,84,055/- along with interest and also imposed penalties under Sections 77 and 78 ibid. The adjudication order dated 09.05.2016 was appealed against by the assessee-appellant before the learned Commissioner (Appeals), Service Tax-II, Mumbai. The appeal was disposed of by the learned Commissioner (Appeals) vide the impugned order dated 09.06.2017, in the following manner: Serial No. Demands confirmed in the adjudication order (in Rs.) Status in the impugned order 1. 21,84,055/- Allowed the appeal in favour of the assessee-appellant, holding that SCN issued for the period 2007-08 to 2011-12 is barred by limitation of time in terms of the proviso to sub-section (1) of Section 73 ibid. 2. 9,11,946/- Droppe....
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.... letter dated 17.09.2008, the assessee- appellant had informed the department the grounds on which they were not paying service tax by considering the transaction as taxable service and that they have treated the transaction as sale of goods and accordingly, were discharging the VAT liability. On close reading of the correspondences available in the case file, we find that the entire activities undertaken by the assessee-appellant within the premises of IIT, Kanpur were known to the department way back in 2008. However, the SCN in this case was issued on 18.10.2013, after a gap of almost 5 years form the date of acquiring the knowledge regarding the activities undertaken by the assessee-appellant. Sub-section (1) of Section 73 ibid, deals with the situation for recovery of service tax, which was not- levied or not-paid or short-levied or short-paid. It has been mandated that in such an eventuality, the Central Excise Officer may, within eighteen months from the relevant date, serve notice on the person chargeable with the service tax, requiring him to show cause, as to why he should not pay the amount specified in the notice. However, in the proviso clause appended to Sub-section (....
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....the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. The meaning of the word both in law and even otherwise is well known. In normal understanding it is not 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." 6.2 Further, in the case of Anand Nishikawa Co. Ltd. Vs. Commissioner of Central Excise, Meerut 2005 (188) ELT 149 (SC), the Hon'ble Supreme Court have dealt with the identical situ....
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.... to both the parties, the omission by one to do what he might have done not that he must have done would not render it suppression. It is settled law that mere failure to declare does not amount to willful suppression. There must be some positive act from the side of the assessee to find willful suppression. Therefore, in view of our findings made herein above that there was no deliberate intention on the part of the appellant 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 proviso to Section 11A 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 the CEGAT to come to a conclusion that the appellant was guilty of "suppression of facts". In Densons Pultretaknik v. Collector of Central Excise [2003 (11) SCC 390], this Court held that mere classification under a different sub-heading by the manufacturer cannot be said to be willful mis-statement or "suppression of facts". This view was also reiterated by this Court in Collector of Central Excise, Baroda v. LMP Precision Engg....
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.... examination, catering for the students under any mid-day meals scheme sponsored by Government, or transportation of students, faculty or staff of such institution. 7.1 The scope of the notification dated 20.06.2012 (supra), with regard to "auxiliary educational service" was clarified by the CBEC vide Circular No. 172/7/2013-ST dated 19.09.2013. Such phrase was explained therein to mean "any services relating to imparting any skill, knowledge, education or development of course content or any other knowledge-enhancement activity, whether for the students or the faculty, or any other services which educational institutions ordinarily carry out themselves but may obtain as outsourced services from any other person, including services relating to admission to such institution, conduct of examination, catering for the students under any mid-day meals scheme sponsored by Government, or transportation of students, faculty or staff of such institution." 7.2 On reading of the above circular issued by the CBEC, it is brought out clearly that the catering service provided to the students in the educational institution should qualify for the exemption as per the notification dated 20.06....
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.... under Section 65(76a) r/w 65(105)(zzt) of the Act, or exempted being in the nature of Restaurant like Services as contended by the Noticee? (ii) Whether Noticee, in view of their new contract for only cooking & serving for the period after December, 2009, is exempt from payment of service tax under 'Outdoor Catering Service' (iii) Whether the demand beyond normal period of one year is time- barred as contended by the Noticee (iv) Whether Noticee are liable to pay interest under Section 75 of the Act and penalty under the Sections 76, 77 & 78 of the Act. 8.1 Though in the case of Asha Caterer (supra), the period involved is from September, 2007 to March, 2012, but there is no change in the statutory provisions, dealing with the subject issue. Therefore, the said order dated 07.10.2013 would be applicable in the case of the appellant for dropping of the adjudged demands. The department has not disputed the fact that the said order dated 07.10.2013 has not been appealed against by Revenue. Thus, the said order had attained finality insofar as the Revenue is concerned and they cannot agitate the matter subsequently in some other cases for a decisi....