TaxTMI 
TaxTMI 
2024 (4) TMI 788
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.... 2013 regarding non-reversal of CENVAT credit in terms of rule 6(3) of CENVAT credit Rules, 2004 [CCR]. Revenue is in appeal against this dropping of demand. 2. The Commissioner confirmed demand of Rs. 11,62,98,132/- on five other grounds and appropriated an amount of Rs. 5,25,39,217/- paid by the assessee prior to issue of show cause notice. The assessee's appeal is against this part of the order on three grounds: (a) An amount of Rs. 5,25,39,217/- was paid by it prior to the issue of show cause notice and, therefore, as per section 73 (3) of Finance Act, 1994 [Finance Act], the department should not have served any notice on it for this amount. The only exception to Section 73(3) is section 73(4) which states that nothing in section 73(3) shall apply to a case where service tax has not been levied or paid or has been short levied or short paid or erroneously refunded by reason of (i) fraud (ii) collusion (iii) willful mis-statement (iv) suppression of facts or (v) contravention of any provision or act or rules with an intent to evade payment of service tax. Since none of these elements are present in this case, therefore, no show cause notice should have been issued o....
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....ect to these demands. According to the Revenue section 73(3) would not apply to this case because these demands are covered by section 73(4). 6. Section 73 (3) and section 73(4) read as follows: " 73(3) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded, on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise Officer before service of notice on him under sub-section (1) in respect of such service tax, and inform the [Central Excise Officer] of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid : Provided that the Central Excise Officer may determine the amount of short-payment of service tax or erroneously refunded service tax, if any, which in his opinion has not been 18 paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specifie....
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....nnot be established by looking into the minds of the taxpayers but has to establish through evaluation of its behavior; (f) There is a greater responsibility of the taxpayer operating under self-assessment; (g) The intent to evade payment of service tax is not required to be calculated with mathematicalprecision in the regime of service tax especially in the noticee itself makes the self-assessment; (h) It is the bounden duty of the assessee to disclose all facts while doing their assessment and any deviation would tantamount with an intent to evade payment of service tax; 8. These very grounds were taken by the Commissioner for invoking the extended period of limitation as well. 9. We cannot agree with the Commissioner's finding. Not only this assessee but every assessee of service tax operate as self-assessment and that cannot be a ground invoke extended period of limitation. Otherwise, the normal period of limitation will be rendered otiose and the five elements required to invoke the extended period of limitation will also be rendered otiose. 10. The scheme of the service tax requires the assessee to self-assess service tax and file returns a....
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.... the return and was not paid even a preliminary scrutiny of the service tax return could have disclosed this fact. As we have already held that the elements for invoking the extended period of limitation were not established in this case the demand of Rs. 6,37,58,915/- on this ground also needs to be set aside. 14. For the same reason we find that the imposition of penalty under section 78 on the assessee also needs to be set aside. 15. The appeal of the Revenue is regarding dropping of demand of Rs. 2,18,35,039/-for the period 2012-13 and 2013-14 under rule 6(3) of CCR. The Commissioner, after perusing the details submitted by the assesse, the certificate from the chartered accountant and the ST-3 returns, accepted the asseesse's contention that the appellant had wrongly shown some amounts as net amounts instead of gross amount in the ST-3 returns. After taking them into consideration, the Commissioner found that the reversal of CENVAT credit was correct and proper and, therefore, dropped the demand. The grounds on which the Revenue filed this appeal are as follows: (i) The Commissioner dropped the demand amounting to Rs. 2,81,35,079/- on the ground that the amount ....