TaxTMI 
TaxTMI 
2026 (3) TMI 438
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....sing to low- and medium-income groups. Such housing scheme was in operation during the relevant period. 2.2. For undertaking the construction of houses under one such housing schemes, the appellant awarded Work Order No.306 dated 20.08.2006 to M/s. Crescent Construction Company, Mumbai (Contractor') for construction of 2976 flats at Sanganer, Jaipur. The construction work for this project started in 2006-07 and continued till 2015. 2.3. Out of 2976 flats, the construction and handing over of possession of 332 flats was complete prior to 01.07.2012 Service Tax on the construction of these 332 flats was paid by the Contractor in the relevant period (December 2013 to March 2014) pursuant to which the appellant availed Cenvat Credit of Service Tax charged by the Contractor (also in the relevant period) on the supply of construction services to the appellant prior to 01.07.2012. 2.4. For these 332 flats, the appellant has paid service tax on its output service as and when the flats were sold and amounts were realized from flat buyers. The date of availment of Cenvat Credit in dispute are as follows:- Period of work done Amount of Cenvat Credit in dispute Date of re....
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.... have been invoked. Referring to the decision in the case of the appellant itself, it is submitted that the appellant being an instrumentality of State, no suppression or fraud could be alleged and the demand is, therefore, liable to be set aside. It has been clarified that during the audit, the appellant responded to all the letters issued by the Department and, therefore, all the details and documents were verified by the audit team and all the material information was in the knowledge of the Department. In support of his submissions, the learned Counsel has referred to series of decisions. 6. Shri V.K. Jain, the learned Authorised Representative for the Revenue has tried to argue the appeal on merits to justify the invocation of the extended period of limitation. He reiterated the findings that the wrong availment was detected solely through detailed scrutiny of records by the audit team, which would not have been unearthed had the audit not been conducted. He further submitted that under Rule 9(6), the burden of proof for Credit admissibility lies on the provider and the appellant failed to come clean before the Department regarding their unique "delayed possession". 7. T....
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....detailed scrutiny of records by the audit team. The contents of the show cause notice do not refer to any fraud, collusion or suppression on the part of the appellant. In the absence of such allegations, the invocation of extended period of limitation is not justified. The Adjudicating Authority while considering the contention of the appellant objecting the action of the Department in invoking the extended period observed as under:- "12. As regards contention of the appellant that in the present case neither extended period is applicable nor penalty imposable. In this regard, I observe that the department has detected this issue only during the course of the audit of records of the appellants whereas under the self-assessment procedure greater trust and responsibility is placed on the assessee to appropriately follow Central Excise procedures and discharge duty, therefore, it is their duty to compute the correct assessable value and correct duty payable by them in their assessment documents but this non-payment of Central Excise Duty could be detected only during the course of audit undertaken by the Department. Moreover the appellants have not produced any documentary or....
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.... versus CCE, Bhopal [2014 (34) STR 373 (Tri.-Del.)] holding that when an institute run by a State Government and associated in implementation of various welfare schemes of the Government, the allegations of suppression of facts or wilful misstatement can be nothing but absurd and, therefore, concluded that there cannot be an intent to evade the payment of tax. 11. The law on the applicability of the extended period of limitation has been settled in catena of decisions by various forums. Without repeating too many decisions on the point, we may refer to some of the decisions as cited by the learned Counsel. As a matter of fact while invoking the extended period, much emphasis is laid on the point that irregularly availed CENVAT would not have been detected but for the audit and the assessee functioning under self assessment is required to assess the service tax correctly. In both the events, the appellant is guilty of suppression of facts with an intent to evade the payment of tax. Both these arguments of the Revenue have been very well dealt and rejected by the Principal Bench of this Tribunal in the case of G.D Goenka Pvt. Ltd. Vs. Commissioner of Central Goods and Service Tax,....
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....., the officer with whom the Returns are filed. For this purpose, the officer may require the assessee to produce accounts, documents and other evidence he may deem necessary. Thus, in the scheme of the Finance Act, 1994, the officer has been given wide powers to call for information and has been entrusted the responsibility of making the correct assessment as per his best judgment. If the officer fails to scrutinise the returns and make the best judgment assessment and some tax escapes assessment which is discovered after the normal period of limitation is over, the responsibility for such loss of Revenue rests squarely on the shoulders of the officer. It is incorrect to say that had the audit not been conducted, the allegedly ineligible CENVAT credit would not have come to light. It would have come to light if the central excise officer had discharged his responsibility under section 72. 21. This legal position that the primary responsibility for ensuring that correct amount of service tax is paid rests on the officer even in a regime of self-assessment was clarified by the Central Board of Excise and Customs [CBEC]in its Manual for Scrutiny of Service Tax Returns the re....
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.... collusion or wilful misstatement or suppression of facts or violation of the provisions of Act or Rules with an intent, e) Intentional and wilful suppression of facts cannot be presumed because (a) the appellant was operating under self-assessment or (b) because the appellant did not agree with the audit and claimed that CENVAT credit was admissible; or (c) because the appellant did not seek any clarification from the Revenue; or (d) because the officer did not conduct a detailed scrutiny of the Returns and the availment of CENVAT credit which is alleged to be inadmissible and was discovered only during audit." 14. Following the decision in G.D. Goenka, the Tribunal in the case of Delhi Airport Metro Express Pvt Ltd. Vs. Commissioner of Central Excise & Customs [Final Order No.50031/2024 dated 11.01.2024] examined the facts of the said case and held that the appellant had not suppressed any information from the Department in the ST-3 Returns nor is there any allegation in the show cause notice or finding in the impugned order that a particular fact had not been disclosed. Since all that has been stated is that the appellant was not e....