TaxTMI 
TaxTMI 
2025 (6) TMI 453
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....cial years 2012-13 & 2013-14 by AGMP, Gwalior, the audit party noticed that the appellant in their ST-3 returns had shown receipts which was less as compared to their receipts shown in their ledger accounts in respect of 'Business Auxiliary Service', 'Renting of immovable property service' and 'Technical inspection and certification services'. The audit party also noted that by declaring less receipts in their ST-3 returns, the appellant had short-paid service tax amounting to Rs. 1,90,14,829/- during the period 2012-13 & 2013-14. The audit party also noted that during the period, April, 2012 to March, 2015, the appellant had short-paid service tax of Rs. 3,02,97,440/- on the differential value of Rs. 24,51,24,921/-. Accordingly, a Show Cause Notice No. 12/COMMR/ST/ADJ/BPL-11/2017 dated 15.11.2017 was issued to the appellant towards demand of service tax of Rs. 3,02,97,440/- under the proviso to Section 73(1) along with interest under Section 75 and alleging imposition of penalty under section 78 of the Finance Act, 1994. The said notice was adjudicated vide the impugned Order-in-Original dated 14.03.2019 wherein the demand of service tax of Rs. 28,53,129/- ....
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....alues of receipts shown in ST-3 vis-a vis ledger accounts and had suppressed the actual receipts from the Department thus, invoking extended period against the appellant. However, there is no whisper in the SCN as regards 'malafide intent of the appellant to evade the payment of tax. 3.2 Learned counsel further submitted that in the absence of establishment of 'malafide intent' to evade payment of tax, invocation of extended period against the appellant is not sustainable and liable to be set aside. In support of his contention, learned counsel relied on the decision of the Tribunal in the case of Mec Shot Blasting Equipment Private Limited v. Commissioner of Central Goods and Service Tax, Service Tax Appeal No. 50404 of 2019 wherein the Tribunal had set aside the demand on grounds of invocation of extended period of limitation where all transactions were declared in the financial records and objections arose on scrutiny of financial records of the assessee. It was held that mere failure to declare does not amount to wilful suppression in the absence of a positive act. Reliance was also placed on the following decisions where it was held that mere suppression in the ab....
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.... barred by limitation. 4. Learned Authorized Representative for the Department, at the outset reiterated the discussions and findings given in the order-in- original. He further submitted that the Adjudicating Authority had conducted a testamentary exercise to verify the appellant's claim vis- à-vis corroborative documentary evidence to quantify the revenue involved. Learned Authorized Representative also submitted that the contention of appellant had been rebutted exhaustively in the order-in- original. He submitted that the adjudicating authority, after scrutiny of invoices vis-à-vis ledgers for Financial Year 2012-13 to 2015-16 had found that the appellant was making consolidated entry of gross amount in their books of account which included service tax portion and therefore the appellant was eligible for benefit of cum tax. With regard to recovery of interest under Section 75 of the Finance Act, 1994, the adjudicating authority had found that recovery of interest is corollary to the demand. Once demand was upheld, the recovery of interest automatically came into play. It is a settled legal position that once tax is not paid by due date or payment is delayed, ....
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....amount reflected in their Books of Accounts, and had suppressed the correct value of the taxable service provided by them with an intent to evade payment of service tax. Such a finding recorded that suppression of facts is enough 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. Even if one assumes that there was suppression, it has to be examined whether suppression was wilful and with an intent to evade payment of service tax. We note that the Hon'ble Supreme Court has held that suppression of facts has to be "wilful‟ and there should also be an intent to evade payment of service tax. In this context, we take into consideration the observations of the Hon'ble Supreme Court in Pushpam Pharmaceuticals Company vs Commissioner of Central Excise, Bombay [1995 (78) E.L.T. 401 (SC)] as to whether the Department was justified in initiating proceedings for short levy after the expiry of the normal period of six months by invoking the proviso to section 11A of the Excise Act. The Hon'ble Court observed that the proviso to se....