TaxTMI 
TaxTMI 
2025 (4) TMI 965
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....period, the appellant availed the abatement under Notification No. 1/2006 dated 01.03.2006 as amended by Notification No. 29/2010. An audit of the Appellant's records was conducted for the period of 2010-2011 & 2011-2012 the department noted that for the period 2010-2011, the appellant had availed the abatement under Notification No. 1/2006 Service Tax dated 01.03.2006, and simultaneously availed CENVAT Credit of Service tax on input services used for providing such taxable services. The Department further observed that for the period 2011-2012, the appellant had wrongly availed the CENVAT Credit of Rs. 50,32,761/- with respect to Commercial or industrial construction & Construction of complex service. The department opined that for the period 2011-2012, the Appellant was engaged in providing taxable as well as exempted services, and as per the provisions of CENVAT Credit Rules, 2004, the Appellant was eligible to avail Credit only in respect of taxable services. Further, the appellant had not maintained separate accounts for taxable services & exempted services as required under Rule 6(3) of the CENVAT Credit Rules. Therefore, a show cause notice dated 11.12.2013 under Section 73(....
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....th the 'Commercial or Industrial Construction Service' or 'Construction of Residential Complex Service. The services availed are covered under Rule 6(5) of the CENVAT Credit and the same has been accepted by the department. In support of his contention, he relied upon the following decisions:- * Commissioner of C. Ex., Goa Vs. V.M. Salgaonkar & Bros. Pvt. Ltd.- 2008 (10) S.T.R. 609 (Tri. - Mumbai) * Reliance Life Insurance Co. Ltd. Vs. Commr. Of Service Tax, Mumbai-2018 (363) E.L.T. 1050-(Tri.-Mumbai) * Lemon Tree Premier Vs. Commissioner of Central Tax, Hyderabad-IV-2024 (4) TMI 397-CESTAT Hyderabad * Tidel Park Ltd. Vs. Commissioner of Service Tax Chennai-2010 (18) S.T.R. 642(Tri. - Chennai) * Lemon Tree Hotels Pvt. Ltd. Vs. Commissioner of Service Tax-Channai-2018 (13) G.S.T.L. 305 - Chennai * Linkwell Telesystems Pvt. Ltd. Vs. Commissioner of Central Tax, Secunderabad-2023 (383) E.L.T. 84 (Tri. - Hyd.) * Super Packs Vs. Commr. Of C. Ex. S.T. & Cus. Banglore -II-2019 (370) E.L.T. 691 (Tri. - Bang.) * Alluglaze Vs. Commissioner of Central Excise, Mumbai - II-2017 (5) G.S.T.L. 262 (Tri. -Mumbai) 3.2 Learned counsel further submitted that Rule 6(5) of C....
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....ri. - Ahmd.) * Central Warehousing Corporation V. Commissioner of Service Tax, Ahmedabad-2016 (41) S.T.R. 106 (Tri. Ahmd.) * SOTC Travels Services Ltd. Vs. Pr. Commissioner of C. Ex., Delhi-1-2021 (55) G.S.T.L 332 (Tri. - Del.) 4. The learned Authorized Representative for the Revenue reiterated the findings of the lower authorities. Learned AR submitted that the appellant had never disclosed to the department that they had claimed abatement in respect of Commercial or industrial Construction & Construction of Residential Complex services and simultaneously availed Cenvat credit for the input services utilized for all output services and not exclusively in respect of the output Service namely Preferential location development services. However, they had not maintained any separate input credit account for input services utilized for the taxable service as well as other output services. Learned AR contended that from these actions, it was evident that the appellant had intentionally and willfully suppressed the said facts in respect of providing impugned taxable services and did not pay the Service Tax as applicable on such services. Thus, by not disclosing the entire facts to t....
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....cts of the case are as follows:- (i) the appellant is registered for construction services including Commercial or Industrial Buildings and Civil Structures, Construction Services, Construction of Residential Complexes, and Maintenance & Repair services, Commissioning and Installation, Preferential Location or External/Internal Development of Complexes. (ii) The appellant was providing both taxable and exempted services (iii) The appellant claimed abatement under Notification No. 01/2006-ST dated 01.03.2006 in respect of Commercial or erection Services and Construction of Residential Complex Services. (iv) The appellant availed Cenvat credit of service on input services used for providing taxable services. (v) The appellant was regularly filing ST-returns (vi) Post the audit, the appellant vide their letter dated 02.09.2013 informed the Department that they had deposited an amount of Rs. 19,74,400/- on 31.07.2013 and reversed unutilized Cenvat credit lying in balance amounting to Rs. 30,58,361/- total amount of Rs. 50,32,761/- for the year 2011. 6. The order-in-original has held that the appellant was not maintaining separate account of taxable and exempted services (a....
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....and unambiguous. In case abatement is availed, then Cenvat credit cannot be availed, if they have availed Cenvat credit then abatement cannot be availed. We note that in terms of Section 93 of the Finance Act, 1994, exemption can be granted generally or subject to such conditions as may be specified in the notification. The Hon'ble High Court of Karnataka in its decision Shriram Properties Limited vs. Commissioner of Service Tax -(2007-TIOL-128-HC-KAR-ST) held as follows:- "7. The notification under Annex. -C which is one in exercise of the powers conferred under sub-s. (1) of s. 93 of the Finance Act, 1994 (32 of 1994) is one for the purpose of granting certain concessions to certain class of service providers. Sec. 93 of the Act reads as under : "93. Power to grant exemption from service-tax. The Central Government may, if it is satisfied that it is necessary so to do in the public interest, by notification in the Official Gazette, exempt generally or subject to such conditions as may be specified in the notification, taxable service of any specified description from the whole or any part of service-tax leviable thereon." 8. The exemption itself in terms of this section can....
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....edit. It was then incumbent upon him to follow the procedure as prescribed under Rule 6 of the CCR, 2004. Therefore, the denial of abatement for 2010-2011 is correct and the demand is sustained. We also note that the appellant has reversed the Cenvat credit availed for the year 2011-2012 which stands appropriated. Therefore, we find no reason to differ from these findings in the impugned order. 10. We now come to the issue of invocation of extended period. It has been contended before us that the demand was raised against the appellant based on the scrutiny of ST-3 returns, wherein all information had been duly disclosed by them. We are in agreement. This issue is no more res-integra. The finding recorded that suppression of facts is sufficient to invoke the extended period of limitation under the proviso to Section 73 (1) of the Finance Act and there is no necessity of any intent to evade payment of service tax, is against the well settled principles. It has to be examined whether any suppression was wilful and coupled 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 it has ....
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.... Nishikawa Company Ltd. vs. Commissioner of Central Excise -[2005 (188) E.L.T. 149 (SC)] 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 wilful 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. vs. 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 omiss....