TaxTMI 
TaxTMI 
2025 (1) TMI 1698
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....markup charges' recovered from M/s Halliburton Far East Pte Ltd, Singapore, they were saddled with proposals for recovery of these very same amounts in addition to Rs. 19,28,495/- for 'network/communication services' arranged by M/s Halliburton Far East Pte Ltd, Singapore and Rs. 2,41,64,340 toward 'secondment of employees' in pursuance of agreement with M/s Halliburton Energy Services Inc, USA and M/s Halliburton Management Ltd, Scotland that were confirmed in order [order-in-original no. PUN-EXCUS-003-COM-020-13-14 dated 7th November 2013] of Commissioner of Central Excise & Service Tax, Pune - III. 2. It was contended that the total recovery of Rs. 3,04,88,587 under section 73 of Finance Act, 1994, along with interest thereon under section 75 of Finance Act, 1994, and imposition of like amount as penalty under section 78 of Finance Act, 1994 for the period from 2007-08 to 2011-12 has erroneously gone beyond the normal period of limitation despite absence of ingredients that alone permitted invoking of the extended period of limitation. 3. It was contended by Learned Counsel that the appellant, in addition to discharging liability on consideration what was, at best, doubtfu....
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....er of CGST & Central Excise, Mumbai v. Securities and Exchange Board of India, Mumbai [2023 (3) TMI 584 - BOMBAY HIGH COURT], in National Flying Training Institute Pvt Ltd, Gondia v. Central Board of Excise & Customs, New Delhi [2023 (12) TMI 439 - BOMBAY HIGH COURT] and of the Tribunal in Renault Automotive India Pvt Ltd v. Commissioner of GST and Central Excise [2023 (7) TMI 635 - CESTAT CHENNAI], in Projeon Global Forwarding Pvt Ltd v. Commissioner of GST & Central Excise, Chennai North [2023 (8) TMI 941 - CESTAT CHENNAI, in Channel Management and Marketing v. Commissioner of Central Excise, Chandigarh [2023 (11) TMI 155 - CESTAT CHANDIGARH] and Dinesh Chandra R Agarwal v. Commissioner of CGST & Central Excise. Gandhinagar [2023 (11) TMI 1080 - CESTAT AHMEDABAD]. Relying upon the decision of the Hon'ble Supreme Court in International Merchandising Company, LLC v. Commissioner of Service Tax, New Delhi [2022 (12) TMI 556 - SUPREME COURT] it was submitted that willful suppression of facts with intent to evade payment of duty could not be resorted to if interpretation of statutory provisions were involved in the dispute. It is further submitted that, as service tax was to be di....
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.... taxable value as per the provisions of section 67 of the Act, for payment of Service Tax. It is also stated in the SCN that the noticee has by discharging their liability belatedly on value of part services have unjustifiably enriched themselves. The SCN stated that by the above act of commission and omission and by not disclosing to the department in their returns, appropriate amount of charges being remitted to the service providers based outside India, the noticee has suppressed the material facts with Intent to evade Service Tax and hence proviso to section 73(1) of the is invokable in this case. In reply the noticee has stated that the payment in foreign is not taxable, and consequently there is no suppression. They have also stated that they made an application for registration on 28th May 2008, and after repeated follow up the registration were not granted. Therefore, as advised by the department, they again applied for the Service Tax registration on 28th October 2009. They further stated that, post issuance of registration, the Service Tax department issued inquiry notice and they provided all requisite details to the Department. They further stated that they were in the ....
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....oticee has not provided the copy of the decision in the case of Smt. Shirisht Dhawan vs Shaw Brothers {AIR 1992 SC 1555} and hence no comments can be offered. As regards, other two decisions it is observed that the same pertains to the old controlled Central Excise regime. In view of the liberalised and amended provisions of the Service Tax, these decisions cannot be made applicable as the present era is a self-assessment era, and the Government has cast greater trust and responsibility on the tax payer, who is required to fulfil the said obligation in letter and; spirit, Therefore, in view of the liberalised regime, the grounds for defending against suppression are also required to be of higher stature, and not mere acceptance of liability in the Directors Report or Annual Report or pointing towards the Rule book that there is no provision to make declaration in returns; etc. In view of the above, I hold that the clause of suppression with the intent to evade payment of Service Tax is proved beyond doubt.' which follows from the show cause notice charging that '13. From, the above it appears evident that the Noticee failed to obtain the registration in as per the provi....
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....rds "misstatement or suppression of facts" which means with intent to evade duty. The next set of words "contravention of any of the provisions of this Act or rules" are again qualified by the immediately following words "with intent to evade payment of duty". It is, therefore, not correct to say that there can be a suppression or misstatement of fact, which is not wilful and yet constitute a permissible ground for the purpose of the proviso to Section 11A. Misstatement or suppression of fact must be wilful." 63. This decision was followed in Uniworth Textiles v. Commissioner of Central Excise [(2013) 9 SCC 753 = 2013 (288) ELT 161 (SC)] where it was observed that "(t)he conclusion that mere non-payment of duties is equivalent to collusion or willful misstatement or suppression of facts" is "untenable". This view was also followed in Escorts v. Commissioner of Central Excise [(2015) 9 SCC 109 = 2015 (319) ELT 406 (SC)], Commissioner of Customs v. Magus Metals [(2017) 16 SCC 491 = 2017 (355) ELT 323 (SC)] and other judgments. 64. The fact that the CESTAT in the present case, relied upon two of its previous orders, which were pressed into service, and also that in t....
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.....11 It can be seen from the above that Ld. Commissioner has only observed that since the appellant did not disclose the revenue for these project in their periodical return and therefore the Ld. Commissioner has justified the invocation of extended period of limitation to confirm the demand of service tax in the present matter. Learned Commissioner has not given any ground to show that there was a deliberate attempt on the part of the appellant to suppress or to miss declare the value of service. Ld. Commissioner has not even examined the various ingredients for invocation of extended period of limitation as provided in first proviso to section 73(1) of the Finance Act 1994. We observe that on the basis of the above analysis of Section 73(1) of the Finance Act, 1994 and various decision of these tribunal and settled principle of law we are of the clear view that the demand of service tax in the present matter beyond the period of limitation is not sustainable. We observe that the demand in the present matter is for the period 2016-17 and April 2017 to June 2017 and the show cause notice is issued on 27.08.2020. Therefore the entire demand is liable to be set aside on the ground of ....