TaxTMI 
TaxTMI 
TaxTMI 
2025 (1) TMI 540
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....service' and, therefore, a demand was sought to be raised by invoking the extended period of limitation. 4. The Commissioner has, in the impugned order, found as a fact that the appellant was providing 'cargo handling service' and has also held that the extended period of limitation was correctly invoked by the department. 5. It is against the said order that this appeal has been filed by the appellant. 6. Shri B. L. Narsimahan, learned counsel for the appellant assisted by Shri Ashutosh Choudhary made submissions both on the merits as well as on the extended period of limitation. 7. As the entire demand that has been confirmed is under the extended period of limitation, it would appropriate to first examine this issue because if this issue is decided in favour of the appellant, it may not be necessary to examine the issue on merits. 8. The contention of learned counsel for the appellant is that the appellant genuinely believed that it was rendering 'transportation of goods by road service' and the recipient of the service was discharging the service tax liability under the reverse charge mechanism. 9. Shri Aejaz Ahmad, learned authorized representative appearing for the depa....
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....epartment with intent to evade payment of Service Tax. This fact came to light only during the course of audit. Thus, it appears that the said Service Tax is recoverable under proviso to Section 73 (1) of the Finance Act, 1994 invoking extended period of limitation for reason of suppression of facts Interest under Section 75 of the Act also appears recoverable from them at the appropriate rate. The assessee also appears liable to penalty under Section 76 of the Act for contravening the provisions of Section 68 of the Act read with Rule 6 of the Service Tax Rules, 1994 and under Section 78 of the Act for suppressing the material facts from the department with intent to evade payment of Service Tax in contravention of the provisions of Section 68 of the Act read with Rule 6 of the Service Tax Rules, 1994." (emphasis supplied) 12. The appellant filed a reply to the show cause notice contending that the extended period of limitation could not have been invoked in the facts and circumstances of the case. 13. The Commissioner did not accept the submission of the appellant and held that the extended period of limitation was correctly invoked. The relevant portion of the order passed by....
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....attempt to evade payment of excise duty. The show cause notice must specifically deal with this aspect and the adjudicating authority is also obliged to examine this aspect in the light of the facts stated by the assessee in reply to the show cause notice. 17. The provisions of section 11A (4) of the Central Excise Act, which are pari materia to the provisions of section 73(1) of the Finance Act, came up for interpretation before the Supreme Court in Pushpam Pharmaceuticals Company vs. Collector of Central Excise, Bombay [1995 (78) E.L.T. 401 (S.C.)]. The Supreme Court observed that section 11A(4) empowers the Department to reopen the proceedings if levy has been short levied or not levied within six months from the relevant date but the proviso carves out an exception and permits 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. It is in this context that the Supreme Court observed that the act must be deliberate to escape payment of duty. The relevant observations are: "2. ****** The Department invoked extended period of limitation of five years as according to it t....
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....not have been paid because of fraud, collusion, wilful statement, suppression of fact or contravention of any provision. These ingredients postulate a positive act and, therefore, mere failure to pay duty which is not due to fraud, collusion or wilful misstatement or suppression of facts is not sufficient to attract the extended period of limitation. 20. The aforesaid decisions of the Supreme Court were relied upon by the Supreme Court in Uniworth Textiles Ltd. vs. Commissioner of Central Excise, Raipur [2013 (288) E.L.T. 161 (S.C.)] and the relevant portion of the judgment is reproduced below: "12. We have heard both sides, Mr. R.P. Batt, learned senior counsel, appearing on behalf of the appellant, and Mr. Mukul Gupta, learned senior counsel appearing on behalf of the Revenue. We are not convinced by the reasoning of the Tribunal. The conclusion that mere non-payment of duties is equivalent to collusion or willful misstatement or suppression of facts is, in our opinion, untenable. If that were to be true, we fail to understand which form of nonpayment would amount to ordinary default? Construing mere non-payment as any of the three categories contemplated by the proviso would ....
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.... had disclosed to the department its pricing policy by giving separate letters. It is also not disputed that the returns which were required to be filed were indeed filed. In these returns, as we noticed earlier there was no separate column for disclosing details of the deemed export clearances. Separate disclosures were required to be made only for exports under bond and not for deemed exports, which are a class of domestic clearances, entitled to certain benefits available otherwise on exports. There was therefore nothing wrong with the assessee's action of including the value of deemed exports within the value of domestic clearances. 25. We also take note of the fact that in the show cause notice itself it has been accepted by the revenue that the self-assessment procedure did not require an assessee to submit copies of all contracts, agreements and invoices. This being the admitted position in the notice we do not find any basis for agreeing with the findings of the Commissioner that certain relevant documents had not been filed and thereby suppressed from the scrutiny of the revenue officers. An assessee can be accused for suppressing only such facts which it was otherwise r....