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2026 (4) TMI 151
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....ant through Ms. Levensia D'Souza, Mumbai. In response to DGCI Unit's letter, SICCL furnished a reply by letter dated 22.02.2010 in which they mentioned payments made to the appellant along with which they enclosed two work orders dated 20.09.2004 and 06.05.2005 for levelling of soil including filling of gorges / nallah / removing of shrubs, grass, rubbish at Sahara City Home, Coimbatore and the bills 175 dated 20.09.2014 and 226 dated 06.05.2005 issued by the appellant for the above work signed by Ms. Levensia D'Souza, a partner of the appellant. Subsequently, statements were recorded from Ms. Levensia D'Souza and one Mr. Rajesh Kukreja, Chartered Accountant. 3. The Department, being of the view that though SICCL had supposedly issued the aforementioned work orders for the stated purpose and for which the appellant had also raised the aforesaid bills; the appellant had rendered services to SICCL in connection with acquiring of land, which falls under Real Estate Agent Services. Therefore, the department issued a Show Cause Notice No.57/2010 dated 21.10.2010 (SCN) alleging that the appellant had rendered Real Estate Agent Services. The SCN took the value shown in the invoice No.2....
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....cavation, Earthmoving and Demolition services, and that if at all the appellant were to be stated to have rendered services, it could be only that of site formation and clearance service. Reliance was placed on the decisions in M/s. Elegant Developers v. Commissioner of Service Tax in Service Tax Appeal No.50119 of 2014, dated 21.06.2019, affirmed by the Honourable Supreme Court in Commissioner of Service Tax v M/s. Elegant Developers, 2025 INSC 1299, Nkg Infrastructure Ltd. v. Commissioner of Customs, Central Excise & Service Tax (2017) 77 taxmann.com 63 (Allahabad), Nkg Infrastructure Ltd. v. Commissioner of Customs, Central Excise & Service Tax, Ghaziabad (2017) 77 taxmann.com 69 (SC) and Indian Farmers Fertilizer Co-operative Ltd. v. Commissioner of Central Excise (2007) 6 STT 283 (New Delhi - CESTAT). 6. Ld. Counsel has also contended that the SCN issued demanding service tax on the alleged consideration received in May 2005, being even beyond the extended period of limitation of five years, is thus barred by limitation. Ld. Counsel contended that as per Rule 6 of the Service Tax Rules, 1994, the payment of service tax in respect of partnership firms is required to be made ....
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....provisions of law that prescribe the situations as well as the attendant ingredients thereto that attract its application. The findings of fact on the question of jurisdiction would be a jurisdictional fact. Such a jurisdictional question therefore needs to be examined and is to be determined having regard to both the facts and law involved therein. 11. To appreciate whether the demand is wholly barred by limitation, it would therefore be appropriate to reproduce section 73(1) of the Finance Act,1994 as it stood at the relevant time. This section deals with recovery of service tax not levied or paid or short levied or short paid or erroneously refunded. It is as follows: "73.Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded. - (1) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requir....
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....er this Chapter or the rules made thereunder; (ii) in a case where the service tax is provisionally assessed under this Chapter or the rules made there under, the date of adjustment of the service tax after the final assessment thereof; (iii) in a case where any sum, relating to service tax, has erroneously been refunded, the date of such refund." (emphasis supplied) 15. We find that the contention of the appellant that the demand was wholly barred by limitation has been addressed by the appellate authority in para 9 of the impugned Order in Appeal, as under: "9. Other arguments by the appellant that the service was rendered before March 2005 and there was no activity after March 2005 and the SCN was issued after the period permitted under section 73(1) are found not correct since the show cause notice was issued within the prescribed time limit under Section 73(1) of the Finance Act, 1994. As per Section 73(6)(b), "where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules" would be the 'relevant date' to raise the demand. Further as the appellant had failed to register, assess the....
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....equired to self-assess the tax payable on the services and to furnish return in the prescribed form. Half-yearly return is to be submitted, as required by Rule 7. However, the liability to pay service tax, as contemplated by rule 6, arose by the 5th of the month immediately following the calendar month in which the payments were received towards the value of taxable services. Therefore, if service tax is not paid on the date prescribed under rule 6(1), the date relevant for issuing notice for recovery of tax would be, in respect of those who are not registered, like the appellant who was not registered at the relevant time, the date when the tax liability arose. A person not registered could not have given the particulars of registration in the prescribed form, and would therefore be governed by clause (c) of Section 73(6), which prescribes the date on which the tax was to be paid as the "relevant date". The prescribed form of return ST-3 or ST-3 A is required to accompany copy of TR-6 challan showing the payment of service tax. In cases where registration is not obtained and no return is filed or to be filed along with such copy of TR-6 challans as was the case with the appellant,....
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....the words "Collector of Central Excise" and for the words "six months", the words "five years" were substituted." A bare reading of the proviso indicates that it is in nature of an exception to the principal clause. Therefore, its exercise is hedged on one hand with existence of such situations as have been visualised by the proviso by using such strong expression as fraud, collusion etc. and on the other hand it should have been with intention to evade payment of duty. Both must concur to enable the Excise Officer to proceed under this proviso and invoke the exceptional power. Since the proviso extends the period of limitation from six months to five years, it has to be construed strictly. The initial burden is on the Department to prove that the situations visualised by the proviso existed. But once the Department is able to bring on record material to show that the appellant was guilty of any of those situations which are visualised by the Section, the burden shifts and then applicability of the proviso has to be construed liberally. When the law requires an intention to evade payment of duty then it is not mere failure to pay duty. It must be something more. That is, t....
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....) 3 SCC 410 = 2003 (152) E.L.T. 39 (S.C.) wherein this Court held :- "31. It is settled law that for invoking the extended period of limitation duty should not have been paid, short levied or short paid or erroneously refunded because of either fraud, collusion, wilful misstatement, suppression of facts or contravention of any provision or rules. This Court has held that these ingredients postulate a positive act and, therefore, mere failure to pay duty and/or take out a licence which is not due to any fraud, collusion or willful misstatement or suppression of fact or contravention of any provision is not sufficient to attract the extended period of limitation." [Emphasis supplied] 18. We are in complete agreement with the principle enunciated in the above decisions, in light of the proviso to Section 11A of the Central Excise Act, 1944" 22. In its judgement in Uniworth Textiles Ltd supra, the Apex Court also reiterated that : "It is a cardinal postulate of law that the burden of proving any form of mala fide lies on the shoulders of the one alleging it. This Court observed in Union of India v. Ashok Kumar & Ors. - (2005) 8 SCC 760 that "it ca....
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....Court in Stemcyte India Therapeutics Ltd v. CCE & ST, Ahmedabad III, 2025 (394) ELT 3 (SC), after noticing its earlier decisions including the ones reproduced above, has again reiterated the position in law for invoking the extended period of limitation, as under: "9.3 It is a settled principle of law that, for the department to invoke the extended period of limitation, there must be an active and deliberate act on the part of the assessee to evade payment of tax. Mere non-payment of tax, without any element of intent or suppression, is not sufficient to attract the extended limitation period. xxxxxxxx 9.4 Therefore, in the absence of fraud, collusion, wilful misstatement, or suppression of facts with an intent to evade payment of service tax, the invocation of the extended period of limitation under Section 73 of the Finance Act, 1994 is wholly unwarranted. Mere non-payment of service tax, by itself, does not justify the invocation of the extended limitation period. Accordingly, the show cause notice issued by the department is clearly time-barred. On this ground alone, the impugned order deserves to be set aside. 25. Yet, seemingly impervious to the ....
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....duced above, from which we find no reason to differ, we are of the considered view that the SCN issued on 21.10.2010 for the period of May 2005 being wholly barred by limitation, would also render the impugned order upholding the order of the Adjudicating Authority confirming the demand with interest and imposing penalty under Section 78, unsustainable and liable to be set aside on this count too. 27. Given our aforesaid findings in favour of the appellant on limitation, even though the contentions on merits urged placing reliance on the decisions in M/s. Elegant Developers v. Commissioner of Service Tax in Service Tax Appeal No.50119 of 2014, dated 21.06.2019, affirmed by the Honourable Supreme Court in Commissioner of Service Tax v M/s. Elegant Developers, 2025 INSC 1299 too, ex facie appear to be in favour of the appellant, we are not addressing the same. 28. Furthermore, we find that the Honourable High Court of Allahabad, in Commr of Cus, C.Ex & S.Tax v. Monsanto Manufacturer Pvt Ltd, 2014 (35) STR 177 (All), has held as under: "20. Though in the appeal by the assessee several questions of law have been framed, the following question has been pressed at the hear....
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....erits of the dispute. We, accordingly, answer the question of law as framed by the assessee in the affirmative and in favour of the assessee. 25. The appeal by the assessee shall stand disposed of in the aforesaid terms." (Emphasis supplied) 29. We also find that the Honourable Supreme Court in Commissioner of Customs, Mumbai v B.V. Jewels, 2004 (172) ELT 3 (SC), has observed that " If, in reality, the CEGAT found that the action taken by the departmental authorities was beyond the period of limitation, it could have disposed of the appeals before it only on that ground without examining the merits". This decision of the Apex Court in B.V. Jewels ibid is noticed to have been followed in Commr of Service Tax, Mumbai IV v. Rochem Separations (I) P Ltd, 2019 (366) ELT 103 (Bom). 30. It is also seen that the jurisdictional High Court in E.T.A General Pvt Ltd v Additional Commissioner of C.Ex, Chennai, 2016 (44) STR 409 (Mad) has held as under: "11. In Commissioner of Customs, Central Excise & Service Tax v. M/s. Monsanto Manufacturer Pvt. Ltd., reported in 2014-TIOL-550-HC-ALL-ST, while declaring the demand as beyond the period of one year, the Tribunal....