TaxTMI 
TaxTMI 
2026 (6) TMI 1424
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.... 62/1819/853 dated 10.12.2020 was served upon the appellant proposing the recovery of service tax amounting to Rs.2,31,29,753/- along with appropriate interest and the proportionate penalties. The proposal was confirmed vide the Order-in-Original No. 117/2022 dated 28.09.2022. Being aggrieved, the appellant is before this Tribunal. 2. We have heard Shri A.K. Batra, learned Chartered Accountant for the appellant and Shri Suresh Nandanwar, learned Authorized Representative for the department. 3. Learned counsel for the appellant has submitted that the appellant is a society comprising scheduled carriers such as Go Air, IndiGo and SpiceJet as its members. The appellant represents the aviation industry before Regulatory Authorities, Government departments and other stakeholders for addressing industry-level concerns. The appellant has been registered with the service tax authorities since 2012 and has been regularly discharging service tax on membership subscription received from its members. The output service tax liability has consistently been discharged in cash. During the disputed period (October 2014 to June 2017), the appellant availed legal services from various advocates....
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....e Limited Vs. Commissioner of Customs, Central Excise and Service Tax, Dehradun vide Final Order No. 51930/2021 dated 11.11.2021 announced by the Principle Bench of this Tribunal in Appeal No. ST/50126/2016 is relied upon. The invocation of extended period is also justified. With these submissions, the order under challenge is prayed to be upheld and appeal is prayed to be dismissed. 5. Having heard both the parties and perusing the records, We observe and hold as follows: 5.1 Since one of the grounds taken by the appellant is about show cause notice being beyond the period of limitation. We foremost look into the said aspect. In the present case, the show cause notice has been issued on 10.12.2020 proposing the demand for the period October 2014 to June 2017. We have observed from the appeal memo the following facts: Period Date on which ST-3 filed Date up to which SCN could be issued Remarks Service Tax October'14 - Mar'15 05.05.2015 04.05.2020 Beyond 5 years 44,75,699/- Apr'15 - Sep'15 25.11.2015 24.11.2020 Beyond 5 years 27,71,384 Oct'15- Mar'16 22.04.2016 21.10.2018 Beyond normal period 27,71,383 Apr'16- Sep'....
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....t produced any evidence to that effect. We rely upon the decision of hon'ble Supreme Court in the case of Pushpam Pharmaceutical Co. vs. Commissioner of Central Excise, Bombay, reported as 1995 (78) ELT 401 (SC). The hon'ble Supreme Court examined 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 proviso to section 11A of the Excise Act carved out an exception to the provisions that permitted the Department to reopen proceedings if the levy was short within six months of the relevant date and permitted the Authority to exercise this power within five years from the relevant date under the circumstances mentioned in the proviso, one of which was suppression of facts. It is in this context that the hon'ble Court observed that since "suppression of facts‟ has been used in the company of strong words such as fraud, collusion, or wilful default, suppression of facts must be deliberate and with an intent to escape payment of duty. The observations are as follows: "4. Section 11A empowers the Department to reopen proceedings if the le....
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....ht have done not that he must have done would not render it suppression. It is settled law that mere failure to declare does not amount to willful suppression. There must be some positive act from the side of the assessee to find willful suppression. Therefore, in view of our findings made herein above that there was no deliberate intention on the part of the appellant not to disclose the correct information or to evade payment of duty, it was not open to the Central Excise Officer to proceed to recover duties in the manner indicated in proviso to Section 11A of the Act." 47. These two decisions in Pushpam Pharmaceuticals and Anand Nishikawa Company Ltd. were followed by the Supreme Court in the subsequent decision in Uniworth Textile Limited vs. Commissioner of Central Excise, Raipur reported as 2013 (288) ELT 161 (SC) and the observation are: "18. We are in complete agreement with the principal enunciated in the above decisions, in light of the proviso to section 11A of the Central Excise Act, 1944." 5.5 In Pahwa Chemicals Private Limited, while examining whether the extended period of limitation under section 11A(1) of the Central Excise Act could have been ....
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....nded limitation period under the proviso to Section 73(1) does not refer to a scenario where there is a mere omission or mere failure to pay duty or take out a license without the presence of such intention." xxxxxxx The Revenue has not been able to prove an intention on the part of the Appellant to avoid tax by suppression of mention facts. In fact it is clear that the Appellant did not have any such intention and was acting under a bonafide belief." 5.8 Very recently the Delhi High Court in Mahanagar Telephone Nigam Ltd., also observed as follows: "28. In terms of the proviso to Section 73(1) of the Act, the extended period of limitation is applicable only in cases where service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, or collusion, or wilful misstatement, or suppression of facts, or contravention of any provisions of the Act or the Rules made thereunder with an intent to evade payment of service tax. However, the impugned show cause notice does not contain any allegation of fraud, collusion, or wilful misstatement on the part of MTNL. The impugned show cause notice alleges that the ....