TaxTMI 
TaxTMI 
2012 (11) TMI 1351
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....to M/s Hindustan Paper Corporation limited (Corporation) in terms of agreement dated 25-02-2004 entered into between them pursuant to the work order dated 11-02-2004 issued by the Corporation in favour of petitioner No. 1. Petitioner No. 1 (firm) is basically engaged in the activity of supervising and coordinating transportation and shifting of finished reels and reams of paper for the Corporation. 3. On 12-05-2006, a summon was issued to the firm by the Senior Intelligence Officer, Directorate General of Central Excise Intelligence, Shillong informing the firm about enquiry being conducted against it regarding evasion of service tax/contravention of chapter-V of the Finance Act, 1994. Petitioners were summoned to appear before the said authority together with the documents mentioned in the schedule appended thereto. 4. The authorized representative of the firm appeared before the authority as directed alongwith the relevant documents. Thereafter, the firm received letter dated 19-07-2006 from the Superintendent of Central Excise, Jagiroad informing that on scrutiny it transpired that the firm had been rendering taxable service to the Corporation without obtaining service tax....
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....at following notification dated 11-03-2004 as well as corrigendum dated 29-03-2004, Central Excise Intelligence Officers, including Additional Director of Directorates General of Central Excise Intelligence have been appointed as Central Excise Officers vested with all their powers to be exercised through out the territory of India. They justified issuance of the show-cause notice by contending that the activities undertaken by the firm prima facie comes within the definition of "cargo handling service", which is a service of taxable nature. 8. Petitioners in their rejoinder affidavit while reiterating the averments made in the writ petition, additionally contended that the show-cause notice dated 04-09-2006 was time barred and, therefore, without any legal validity. 9. Learned Single Judge did not accept the contention of the appellants against the maintainability of the writ petition on the ground of availability of alternative remedy. Learned Single Judge was of the view that challenge to the show-cause notice founded on the bar of limitation and other pleas required scrutiny on merit. In the course of hearing, confronted by the counter of the appellants, learned Counsel f....
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.... service tax, by the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect as if, for the words "one year", the words "five years" had been substituted. 12. Thus, the aforesaid Section provides that in a case where service tax has not been levied or has not been paid or has been short levied or short paid or erroneously refunded, the Central Excise Officer may serve notice on the person so chargeable, to show-cause why he should not pay the amount specified in the notice. The time limit for issuance of such notice is one year from the relevant date. However, where service tax has not been levied or has not been paid or has been short levied or short paid or erroneously refunded by reason of fraud or collusion or willful mis-statement or suppression of facts or contravention of any on the provisions of chapter-V of the Finance Act, 1994 or the Rules made thereunder, with intent to evade payment of service tax, the period of limitation of one year would stand extended to five years. 13. Relevant date has been defined in Section 73(6) of the Finance Act, 1994 to mean, in a case where no periodical return has been filed, the las....
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....is the culmination of the process initiated by the summons dated 12-05-2006. Though, the respondents have been vociferous in their counter that the notice dated 04-09-2006, was preceded by an inquiry and that the evidence culled therein, reveal taxable nature of the services rendered by the petitioner to HPCL and that they had been evading the payment of service tax, no disclosure had been made as to the date of the commencement of such probe. This assumes significance, as the impugned summons dated 12-05-2006 reveals the respondents awareness to the evasion of service tax/contravention of Chapter V of Act, 1994 and Rules thereunder by the petitioners. Noticeably, the sworn statements made by the petitioners in their affidavit-in-reply that the HPCL by its letter dated 14-07-2004, had provided to them (respondents) the names and complete particulars of its contractors, amounts paid to them per month etc. which included the petitioner firm, have remained unrebutted. The documents placed before this Court for its perusal, the authenticity whereof, has not been questioned by the respondents included the letter dated 06-08-2003, by the Superintendent, Central Excise (Service Tax), Jagi....
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....r. As admittedly, the petitioners herein, have neither submitted their returns nor had paid the service tax, the notice under Section 73(1), in absence of any one or any more of the eventualities permitting the extension thereof, would have to be issued within one year from the last date on which the return ought to have been filed or the tax paid by them. 17. Rule 7 requires every assessee to submit a half early return in form ST-3 or ST-3A, alongwith a copy of form TR-6 triplicate for the months covered in the half yearly return. Sub Rule 2 thereof, mandates the half early return to be filed by the 25th of the month following the particular half year. 18. Allegation of suppression, though, gatherable from the impugned notices, in absence of any confutation of the pleaded statements bearing on the letter dated 16-07-2004 of the HPCL, I do not feel persuaded to sustain the said imputation-Mere non-registration of the petitioner firm and non-payment of service tax, would not be of definitive significance to presuppose the contemplated suppression under the proviso to Section 73 of the Act, 1994, with the intent to evade payment of service tax (emphasis ours). In my....
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.... benefit of the extended period of notice envisaged under the proviso. The period mentioned in the impugned notice in the form issued being in severable the demand, thus has to be held as time barred qua Section 73(1) of Act, 1994. ......................... 26. In view of the above resounding judicial pronouncements and the deductions as based on contemporaneous records and facts, the irresistible conclusion is that the impugned notice dated 04-09-2006, is unsustainable in law, being in contravention of the prescription of Section 73(1) of the Act, 1994 and is thereof, quashed. 18. The reasonings given and the conclusion arrived at by learned Single Judge is in tune with the line of reasoning of the Hon'ble Supreme Court in the case of Commissioner of Central Excise, Aurangabad v. Bajaj Auto Limited, reported in 2010 (260) ELT 17 where also the issue was bar of limitation in issuing notice under Section 11A of Central Excise Act, 1944 seeking recovery of duties not levied or not paid or short levied or short paid or erroneously refunded in case of fraud or collusion or willful mis-statement or suppression of facts or contravention of any of the provisions o....