TaxTMI 
TaxTMI 
2023 (11) TMI 1080
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....declared as a successful bidder. The Chief Engineer, (AF) WAC, Military Engineer Service, Palam, Delhi Cantt issued the letter of acceptance dated 14.06.2016 in favour of the appellant on behalf of the President of India. 2.3 The appellant entertained a view that their services provided to the Chief Engineer, Military Engineer Services is exempted from payment of service tax vide the notification number 25/2012-ST dated 20.06.2012 as amended from time to time. 2.4 Based on the intelligence inputs received by the Directorate General of Goods and Service Tax Intelligence, Ahmedabad, an inquiry was initiated against the appellant regarding difference in taxable value declared in the service tax returns filed by them as compared to the revenue shown in their financial statements. On conclusion of the investigation, show cause notice dated 27th August 2020 was issued to the appellant on the ground that appellant are not eligible for exemption under Notification No. 25/2012-ST dated 20.06.2012 as amended and also have misdeclared or suppressed the value of the taxable services. The show cause notice alleged suppression on the part of the appellant and invoked the extended period of....
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....-804- CESTAT-ALH-ST. In the aforesaid case, it was sought to be submitted by the Appellant that the Department cannot be allowed to discriminate between various assesses on the same issues. A view was taken that the centres of the Appellant would not be required to pay Service Tax under BAS, if Service Tax had been paid on the entire amount by the agency. This submission was made in view of the order dated 25 October 2012 passed by the Commissioner (Appeals), which order had attained finality. It is in this context that the Tribunal held that once the Department has permitted the order to attain finality, it cannot be permitted to contend that the Appellant should also be required to pay Service Tax on BAS and to arrive at this conclusion, reliance was placed on the decision of the Supreme Court in Damodar J Malpani vs. CCE - 2002 (146) E.L.T. 483 (S.C.) - 2002-VIL-32- SC-CE, wherein it was held: 3. It appears from the records that several letters were written by the Appellant to the Excise Authorities requesting that a sample of the Appellant product may be chemically analysed at the Appellant cost for the purpose of determining whether the Appellant product or process in....
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....ing 24.04, the Appellant should get the same benefit. 6. At the hearing today we sought an explanation from the learned Counsel appearing on behalf of the Revenue Authorities as to why different stand had been taken in the cases of M/s. Chandulal K. Patel & Company and the Appellant. Since the matter had not been squarely dealt with on facts at any stage by any of the authorities below, it was not possible for learned Counsel to give us the reasons for drawing this distinction between the two manufacturers and differently classify what were alleged to be materially the same product. 7. In the circumstances we deem it appropriate to set aside the order of the Tribunal and remand the matter back to the Tribunal for considering whether the product and process followed by M/s. Chandulal K. Patel & Co. is the same as that of the Appellant product for the chemical analysis if not already done. The Tribunal will thereafter consider the question of classification of the appellant product having regard to the classification of Karta Chhap Zardathe chemical analysis report and any other material that may be placed before it by the respective parties. 18. In this vi....
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....ed. Admittedly, the respondent is very much involved in execution of the project of smart card for vehicle registration. Though they are not executing the full project for Government of Maharashtra in terms of direct agreement with the Regional Transport Authorities, it is clearly an admitted fact that their work is directly linked to the preparation of smart cards which are essential to fulfill the statutory work of Government of Maharashtra. We find that the analysis of factual and legal position by the Original Authority cannot be faulted. We also examined the proposal made by the Revenue in the demand notice for tax liability of the respondent. We note that essentially the respondent were put to tax liability under sub-clause (vi) of Section 65(19) dealing with Business Auxiliary Service. The said sub-clause states provision of service on behalf of the client. We are not very clear as to who is the client and who is the recipient of service in the present case. The allegation is that M/s. Shonkh is a service provider to GOM who is a client; M/s. Shonkh are providing services to the applicants of smart card on behalf of Government of Maharashtra. Following the similar reasoning ....
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....t issue for our consideration is whether the demand of service tax is required to be set aside on the ground of limitation. It is undisputed fact in the present matter that the entire issue has arisen on the basis of comparison of the income disclosed by the appellant in their financial statements and disclosed the value of taxable services in their periodical returns. It is also undisputed fact that the entire income was recorded as a income in the financial statements of the appellant. Therefore it is not a case where the income was also not recorded in financial statement and the revenue authorities found out the rendition of services on the part of the appellant basis on some other sources. 3.5 We find that the similar issue was recently examined by the division bench of this tribunal at Delhi in case of M/s. Digital Infusion Pvt. Ltd. reported in 2023-VIL-894-CESTAT-DEL-ST wherein it was observed as under: "12. It is not in dispute that the entire demand that has been confirmed by the Commissioner (Appeals) falls in the extended period of limitation. It has, therefore, to be seen whether the extended period of limitation could have been invoked in the facts and cir....
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.... "9. It appears that the assessee was engaged in provision of taxable services. The non-payment of service tax on the mentioned services came to the notice only during the course of verification of records of the assessee by the officers, which would have otherwise gone unnoticed. The assessee is working under the selfassessment regime, hence, the onus of assessment of tax payable is on the assessee. They have failed to discharge this onus with willful intent to evade the payment of Service Tax. Further, it also appears that the assessee had intentionally and suppressed/concealed the facts of non-payment of Service Tax on import of Services under RCM and also failed to show their liability in ST-3 return with a willful intent to evade the payment of service tax and/or availment and utilization of Cenvat Credit. But for the audit conducted, the facts of improper availment and utilization of Cenvat credit/non-payment of Service Tax would not have come to the knowledge of the department. Thus, by not disclosing the entire vital facts to the department by them, it appears that the provisions of proviso to Section 73 (1) of the Finance Act, 1994 read with Rule 14 of CENVAT Credit Ru....
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.... of the records of the appellant and on 11.04.2017 the department was aware of the fact that the appellant had not discharged the service tax liability on the input services on reverse charge basis. The department also conducted an audit of the records of the appellant on 26.07.2019 and it is not the case of the department, and it cannot be, that the department came to know that the appellant had not discharged service tax liability on the input service on reverse charge basis only during the audit. Yet, the show cause notice was issued on 23.06.2020 i.e. almost after a period of three years and two months from the date the verification was conducted by the department. 17. The appellant may have suppressed information in the ST-3 returns filed by it regarding the liability to pay service tax on input service on reverse charge basis, though it had paid service tax while providing output service, but the department was aware of this fact on 11.04.2017. All that has been stated by Commissioner (Appeals) in the impugned order is that since it was evident that the appellant had not declared the liability on import of services under reverse charge in the ST-3 returns, this would....
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.... levied or paid or has been short-levied or short-paid or erroneously refunded, the Central Excise Officer may, within one year 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 "one year", the words "five years" had been substituted." 21. It would be seen from a perusal of sub-section (1) of section 73 of the Finance Act that where any service tax has not been....
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....4, as it stood when the Supreme Court explained "suppression of facts" in Pushpam Pharmaceutical Co. vs. Commissioner of Central Excise, Bombay [1995 (78) E.L.T. 401 (SC)] - 1995-VIL-05-SC-CE. It is as follows: "11A: Where any duty of excise has not been levied or paid or has been short- levied or short-pain or erroneously refunded, by the reason of- (a) fraud; or (b) collusion; or (c) any wilful misstatement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Act of the rules made thereunder with intent to evade payment of duty by any person chargeable with the duty, the Central Excise Officer shall, within five years from the relevant dated, serve notice on such person requiring him to show cause why he should not pay the amount specified in the notice along with interest payable thereon under Section 11AA and a penalty equivalent to the duty specified in the notice." 26. In Pushpam Pharmaceuticals Company, 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 ....
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....ction 11A of the Act held that the term must be construed strictly. It does not mean any omission and the act must be deliberate and willful to evade payment of duty. The Court, further, held :- "In taxation, it ("suppression of facts") can have only one meaning that the correct information was not disclosed deliberately to escape 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." 27. Relying on the aforesaid observations of this Court in the case of Pushpam Pharmaceutical Co. v. Collector of Central Excise, Bombay [1995 Suppl. (3) SCC 462], we find that "suppression of facts" can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty. When facts were known 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 findin....
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....ct has to be read in the context of other words in the proviso, i.e. "fraud, collusion, 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 supplied) 31. Very recently the Delhi High Court in Mahanagar Telephone Nigam Ltd. vs. Union of India and others [W.P. (C) 7542 of 2018 decided on 06.04.2023] - 2023-VIL-216-DEL-ST, also observed as follows: "28. In terms of t....
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....ate and wilful attempt on the part of the assessee to evade payment of duty. In the absence of any intention to evade payment of service tax, which intention should be evident from the materials on record or from the conduct of the assessee, the extended period of limitation cannot be invoked. Thus, mere non disclosure of the receipts in the service tax return would not mean that there was an intent to evade payment of service tax. 33. This issue was also examined at length by this Bench in M/s G.D. Goenka Private Limited versus The Commissioner of Central Goods and Service Tax, Delhi South [Service Tax Appeal No. 51787 of 2022 dated 21.08.2023] - 2023-VIL-798-CESTAT-DEL-ST and after referring to the provisions of section 73 of the Finance Act, the Bench observed:- "13. There is no other ground on which the extended period of limitation can be invoked. Evidently, fraud, collusion, wilful misstatement and violation of Act or Rules with an intent all have the mens rea built into them and without the mens rea, they cannot be invoked. Suppression of facts has also been held through a series of judicial pronouncements to mean not mere omission but an act of suppression....
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....nvoked. It is also relevant to mention that there could not have been any intent to evade payment of service tax on input service since it was open to the appellant to take credit while providing output service. The Tribunal in G.D. Goenka had clearly held that self assessment cannot be a ground to invoke the extended period of limitation in the absence of the ingredients contemplated under the proviso to section 73 (1) of the Finance Act. The entire demand confirmed by the Commissioner (Appeals) falls in the extended period of limitation. 35. The impugned order dated 25.08.2021 passed by the Commissioner (Appeals), therefore, deserves to be set aside and is set aside. The appeal is, accordingly, allowed. 3.6 We also find that the issue of limitation was elaborately discussed by the division bench of this tribunal at Delhi in another case of M/s. GD Goenka Private Ltd. reported in 2023-VIL-798-CESTAT-DEL-ST where in it is observed as under : 11. We have examined these grounds for invoking extended period of limitation. 12. Section 73 provides for recovery of service tax not levied, not paid, short levied, short paid or erroneously refunded. The provisi....
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.... that he must have done, does not render it suppression." 14. In this appeal, the case of the Revenue is that the appellant had wilfully and deliberately suppressed the fact that it had availed ineligible CENVAT credit on input services. The position of the appellant was at the time of self-assessment and, during the adjudication proceedings and is before us that it is entitled to the CENVAT credit. Thus, we find that it is a case of difference of opinion between the appellant and the Revenue. The appellant held a different view about the eligibility of CENVAT credit than the Revenue. Naturally, the appellant self-assessed duty and paid service tax as per its view. Such a self- assessment, cannot, by any stretch of imagination, be termed deliberate and wilful suppression of facts. 15. Another reason given in the SCN for invoking extended period of limitation was that the appellant had deposited the disputed amount of service tax during audit but later disputed it which shows the appellant's intent to wilfully and deliberately suppress the facts. This reasoning of the Revenue cannot be accepted because there is nothing in the law which requires the assessee to ....
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.... details which the assessing officers may require to scrutinise them, the appellant cannot be faulted because as an assessee, the appellant neither makes the Rules nor designs the format of the Returns. So long as the assessee files the returns in the formats honestly as per its self assessment, its obligation is discharged. 18. Another ground for invoking extended period of limitation is that the appellant had not sought any clarification from the department. We find that there is neither any provision in the law nor any obligation on the assessee to seek any clarification. It was held by the High Court of Delhi in paragraph 32 of Mahanagar Telephone Nigam Ltd. vs. Union of India & Ors. [2023-TIOL-407-DELHI HIGH COURT] - 2023-VIL-216-DEL-ST as follows : " 32. As noted above, the impugned show cause notice discloses that the respondents had faulted MTNL for not approaching the service tax authorities for clarification. The respondents have surmised that this would have been the normal course for any person acting with common prudence. However, it is apparent from the statements of various employees of MTNL that MTNL did not believe that the amount of compensation ....
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....tion if they do not assess and pay the tax correctly squarely rests on the central excise officer, i.e., the officer with whom the Returns are filed. For this purpose, the officer may require the assessee to produce accounts, documents and other evidence he may deem necessary. Thus, in the scheme of the Finance Act, 1994, the officer has been given wide powers to call for information and has been entrusted the responsibility of making the correct assessment as per his best judgment. If the officer fails to scrutinise the returns and make the best judgment assessment and some tax escapes assessment which is discovered after the normal period of limitation is over, the responsibility for such loss of Revenue rests squarely on the shoulders of the officer. It is incorrect to say that had the audit not been conducted, the allegedly ineligible CENVAT credit would not have come to light. It would have come to light if the central excise officer had discharged his responsibility under section 72. 21. This legal position that the primary responsibility for ensuring that correct amount of service tax is paid rests on the officer even in a regime of self-assessment was clarified by ....
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....his could even be undertaken online. Detailed scrutiny, on the other hand, would cover select returns, identified on the basis of risk parameters, drawn from the information furnished by taxpayers in the statutory returns (Service Tax returns or ST-3 in this case). CBEC felt that facilitating preliminary scrutiny online would enhance efficiency and release manpower for detailed manual scrutiny, which could then become the core function of the Range/Group. 2) A detailed scrutiny programme also serves a 'workload development' function by initiating referrals for audit/anti-evasion. 1.2.2 Authority and Ownership 1.2.2A The authority to conduct scrutiny of returns for verifying the assessment done by the assessee is provided in Rule 5A of the Service Tax Rules, 1994. This rule, interalia, authorizes the Commissioner to empower any officer to carry out 'Scrutiny, verification and checks, as may be necessary to safeguard the interest of revenue'. The Rule also allows the officer to call for any record maintained by the assessee for accounting of transactions, the trial balance or its equivalent, and the Income Tax Audit Report maintained under S....
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....ct or Rules with an intent. e) Intentional and wilful suppression of facts cannot be presumed because (a) the appellant was operating under self-assessment or (b) because the appellant did not agree with the audit and claimed that CENVAT credit was admissible; or(c) because the appellant did not seek any clarification from the Revenue; or (d) because the officer did not conduct a detailed scrutiny of the Returns and the availment of CENVAT credit which is alleged to be inadmissible and was discovered only during audit. 26. We, therefore, find in favour of the appellant on the question of limitation. As the entire demand except what has been conceded by the appellant falls beyond the value period of limitation it is not necessary to examine the merits of the case. 27. For the above reasons, the impugned order is set aside except to the extent of denial of CENVAT credit or Rs. 1,45,724 on the architectural services during the period 2011-12 and interest thereon and order of its recovery. The appeal is, accordingly, partly allowed. 3.7 It is also useful to refer to one more decision of these tribunal in case of Emaar MGF Land Ltd. reported in 2021-VIL-364....
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.... the person chargeable with the service tax which has not been levied or paid, requiring him to show cause why he should not pay amount specified in the notice. 18. The 'relevant date' has been defined in section 73 (6) of the Finance Act as follows; 73(6) For the purpose of this section, "relevant date" means,- (i) In the case of taxable service in respect of which service tax has not been levied or paid or has been short-levied or short paid- (a) where under the rules made under this Chapter, a periodical return, showing particulars of service tax paid during the period to which the said return relates, is to be filed by an assessee, the date on which such return is so filed; (b) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (c) in any other case, the date on which the service tax is to be paid under this Chapter or the rules made thereunder; 19. The proviso to section 73(1) of the Finance Act stipulates that where any service tax has not been levied or paid by reason of fraud or collusion or wilful mis-statement or suppression of fact....
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....order) took a view that "it is possible to invoke extended period in the case of service tax even in a situation where there is no intent to evade payment of service tax." 24. It is correct that section 73 (1) of the Finance Act does not mention that suppression of facts has to be "wilful‟ since "wilful‟ precedes only misstatement. It has, therefore, to be seen whether even in the absence of the expression "wilful" before "suppression of facts" under section 73(1) of the Finance Act, suppression of facts has still to be willful and with an intent to evade payment of service tax. The Supreme Court and the Delhi High Court have held that suppression of facts has to be "wilful‟ and there should also be an intent to evade payment of service tax. 25. Before adverting to the decisions of the Supreme Court and the Delhi High Court, it would be useful to reproduce the proviso to section 11A of Central Excise Act, 1944, as it stood when the Supreme Court explained "suppression of facts" in Pushpam Pharmaceutical Co. vs. Commissioner of Central Excise, Bombay [1995 (78) E.L.T. 401 (SC) - 1995-VIL-05-SC-CE]. It is as follows: "11A: Where any duty o....
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....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." (emphasise supplied) 27. This decision was referred to by the Supreme Court in Anand Nishikawa Company Ltd. vs. Commissioner of Central Excise [2005 (188) E.L.T. 149 (SC) - 2005-VIL-32-SC- CE] and the observations are as follows: "26 This Court in the case of Pushpam Pharmaceutical Company v. Collector of Central Excise, Bombay, while dealing with the meaning of the expression "suppression of facts" in proviso to Section 11A of the Act held that the term must be construed strictly. It does not mean any omission and the act must be deliberate and willful to evade payment of duty. The Court, further, held:- "In taxation, it ("suppression of facts") can h....
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.... are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11-A 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 an incorrect statement with the knowledge that the statement was not correct." (emphasis supplied) 30. The Delhi High Court in Bharat Hotels Limited vs. Commissioner of Central Excise (Adjudication) [2018 (12) GSTL 368 (Del.) - 2017-VIL-667-DEL-ST] also examined at length the issue relating to the extended period of limitation under the proviso to section 73 (1) of the Finance Act and held as follows; "27. Therefore, it is evident that failure to pay tax is not a justification for imposition of penalty. Also, the word "suppression‟ in the proviso to Section 11A(1) of the Excise Act has to be read in the context of other words in the proviso, i.e. "fraud, collusion, wilful misstatement". As explained in Uniworth (supra), "misstatement or suppression of facts" does not mean any omission. It must be delibera....
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....ourt in Cosmic Dye Chemical v. CCE, Bombay reported in 1995 (75) E.L.T. 721 (S.C.) - 1994-VIL-19-SC-CE held as below:- Now so far as fraud and collusion are concerned, it is evident "6. that the requisite intent, i.e., intent to evade duty is built into these very words. So far as mis-statement or suppression of facts are concerned, they are clearly qualified by the word "wilful" preceding the words "mis-statement or suppression of facts" which means with 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 proviso to Section 11A. Misstatement or suppression of fact must be wilful." 32. The Commissioner, therefore, fell in error in observing that the appellant had suppressed information from the Department regarding payment of service tax by the appellant on works contract service and availment of CENVAT credit and then holding that mere suppr....
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....t apply. Section 73 of the Act is applicable only in cases where any service tax had not been levied or paid or had been short paid or erroneously refunded. Prima facie, if an assessee is not liable to pay any tax, no demand can be made for wrongful availment of input tax credit for discharge 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 re....
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....d that services rendered by it were not taxable, the extended period of limitation of five years would be available notwithstanding that the respondent had no intention to evade any tax. 18. Before proceeding further, it would be relevant to refer to Section 73(1) of the Act. The same is set out below: "SECTION 73. Recovery 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; ....
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....ny fact merely because the Revenue interprets the statutory provision differently. This is notwithstanding that the Revenue may finally prevail in its interpretation of the statutory provisions and the assessee may not. Mis-statement and suppression of facts must necessarily be examined from the perspective of sufficient disclosure or statements of facts and not contentious interpretations 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 lear....
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....eliberate and for the purposes of evading payment of duty. 25. In Bharat Hotels Limited v. Commissioner of Central Excise (Adjudication) (supra), the Co-ordinate Bench of this Court observed as under: "26. Therefore, it is evident that failure to pay tax is not a justification for imposition of penalty. Also, the word "suppression" in the proviso to Section 11A(1) of the Excise Act has to be read in the context of other words in the proviso, i.e. "fraud, collusion, 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 suppre....
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....usal of above reproduced part of said show cause notice it is very clear that the allegation is to the effect that appellant had suppressed value and such suppression was allegedly as compared to the entries in the balance sheet. This Tribunal has repeatedly held that if the information is available in the balance sheet which is a public document then allegations of suppression cannot sustain. We note that the appellant had filed ST-3 Return and the allegation is on the basis of information available in the public document i.e. balance sheet. Therefore, we hold that suppression is not established. We, therefore, hold that the extended period was not available to the Revenue. We, therefore, hold that the impugned order is not sustainable. We set aside the same and allow the appeal." 3.10 We observe that Learned Commissioner has dealt with the submission of the appellant on the ground of limitation in paragraph 16.13 of the impugned Order in Original dated 19.05.2023. Para 16.13 of the impugned order in original dated 19.05.2023 is reproduced below: "16.13 The Noticee submitted that the period of limitation is inapplicable as the Books of Accounts is a public document and....