TaxTMI 
TaxTMI 
2024 (2) TMI 1134
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....re the Tribunal against the order dated 17-12-2013 passed by the Commissioner, Central Excise & Customs, Raipur, whereby the demand of service was confirmed and the interest & penalty was further levied. (ii) Admittedly, the respondent is a sub-contractor, who had received payment of Rs. 19,30,94,411=00 for fabrication, erection and commissioning work of the main contractors namely; M/s Gannon Dunkerley & Co. Limited, New Delhi and M/s Viraj Steel & Energy Limited, New Delhi. According to it, they did not pay the service tax on the plea that same was required to be paid by the main contractor and the main contractor had also discharged the tax liability and had given a certificate to the respondent. (iii) According to the respondent, during the course of audit it came to fore that in the service tax return ST-3 the respondent has not shown or paid the service tax, therefore, since the liability to pay the service tax was on the respondent according to Section 71A and the circular issued by the Central Government the respondent was duty bound to show the payment of service tax or its entry in the return. (iv) The show cause notice dated 19-10-2012 was issued that for the financia....
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.... period of limitation under Section 73 of the Act. In support of his contention, he would place reliance upon the decision rendered by the Supreme Court in the matter of Commissioner of Central Excise, Visakhapatnam v Mehta and Company (2011) 4 SCC 435 to submit that ignorance will not give any privilege to the respondent and, therefore, the appeal is to be admitted on the substantial question of law that the extended period of limitation would be applicable and the order of the Tribunal is liable to be set aside. 4. Learned counsel for the respondent, per contra, would submit that the payment of service tax by a sub-contractor was under adjudication as different views of different Tribunals were existing. He would further submit that ultimately this was decided in the case of Commissioner of Service Tax v M/s Melange Developers Private Limited Service Tax Appeal No. 50399 of 2014 (decided on 23-5-2019) and the show cause notice which was issued in 2012 did not take care of this issue and the bona fide of the respondent can be shown by the fact that the main contractor had already paid the service tax, which the Commissioner has accepted, therefore, when the interpreta....
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..... Relevant part of Section 73 of the Act is quoted below for ready reference : 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; 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 "thirt....
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....voked, held that since the expression "suppression of facts" is used in the company of terms such as fraud, collusion and willful misstatement, it cannot therefore refer to an act of mere omission, and must be interpreted as referring to a deliberate act of non-disclosure aimed at evading duty, that is to say, an element of intentional action must be present. xxx xxx xxx 23) We are in full agreement with the finding of the Tribunal that during the period in dispute it was holding a bona fide belief that it was correctly discharging its duty liability. The mere fact that the belief was ultimately found to be wrong by the judgment of this Court does not render such belief of the assessee a mala fide belief particularly when such a belief was emanating from the view taken by a division bench of Tribunal. We note that the issue of valuation involved in this particular matter is indeed one were two plausible views could co-exist. In such cases of cases of disputes of interpretation of legal provisions, it would be totally unjustified to invoke the extended period of limitation by considering the assessee's view to be lacking bona fides. In any scheme of self-assessment it beco....