TaxTMI 
TaxTMI 
2026 (9) TMI 956
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....nd be equal to the net tax liability. 5.11 In view of discussion made in foregoing paras. I pass the following order: Order I modify the impugned order to the above extent and appeal filed by the appellant is disposed of accordingly." 2.1 Appellant is registered with the Service Tax Department vide Service Tax Registration No.AFNPA2870GSD001 for providing taxable services. 2.2 On the basis of information received from the Income Tax Authorities it was observed that appellant has short paid service tax for the Financial Year 2014-15, as detailed in table below:- Financial Year Receipts Higher of 2 & 3 Service Tax (incls of Cess) ITR 26AS @% Payable Paid Difference 1 2 3 4 5 6 7 8 2014-15 7940265 79403 7940265 12.36 981417 205308 776109 2.3 Inquiry/investigation was initiated against the appellant and appellant was requested vide letters dated 22.02.2017 and 09.03.2017 to provide the relevant documents and other documents in relation to the exemption in payment of service tax. Appellant did not respond to the said letters. 2.4 Show cause notice dated 18.10.2019 was....
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....CGST Act 2017. iii. I impose Penalty of Rs.4,47,400/-(Rupees Four Lakhs forty Seven Thousand and Four Hundred only) is on the Service Tax demand mentioned in above (i) upon the noticee under Section 78 of the Act read with Section 174 of CGST Act, 2017. iv. I impose a penalty of Rs.10,000/-(Rupees Ten Thousand) under Section 77(1)(c) of the Act read with Section 174 of CGST Act, 2017 for failure of the noticee in furnishing the information called by the CGST & Central Excise Officer." 2.7 Aggrieved appellant have filed appeal before Commissioner (Appeals) which has been disposed of as per the impugned order referred in para 1 above. 2.8 Aggrieved appellant have filed this appeal. 3.1 Counsel for the appellant has filed a request for adjournment in the matter. However, as the issue involved in the present appeal is in a very narrow compass, the matter is taken into consideration on the basis of records. 3.2 I have heard Shri Abhishek Mukharjee, Authorized Representative for the Respondent-Revenue. He reiterated the findings recorded in the impugned orders. 4.1 I have considered the impugned orders along with the submissions made in appeal and during ....
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....power is not tenable and they are liable to pay service tax on gross receipt. 5.6 M/s Aqua Plumbing Pvt. Ltd. On perusal of the agreement dated 11.06.2013 I find that they have rendered the service "GI ducting for air cooler approx area 35000 sq ft" and consideration was fixed at the rate of Rs. 75/- per sq. ft. I find that the said work was rendered in original category with the material. Hence, in terms of Service tax (Determination of value) Rules, 2006 value of service portion comes to the tune of Rs. 6,58,020/(40%@16,45,049/-) and total service tax comes to the tune of Rs. 81,331/-(12.36%@6,58,020/-) (including cess). I find that the appellant is proprietorship firm and recipient is body corporate hence, in terms of Notification No. 30/2012-ST dated 20.06.2012 they are liable to pay service only on 50% of total tax payable. Hence, appellant is liable to pay Service tax Rs. 40,666/- (50% of Rs. 81,331/-). 5.7 M/s Nikhil Homes: On perusal of work order dated 10.04.2014, I find that they have rendered the services "plumbing works cutting, fitting and bath wares would be @15500/- flat, core cutting in bathrooms @350/No." without material. I find that appellant ha....
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....cured 742.51 kl of furnace oil valued at Rs. 54,57,357/- without payment of customs duty by misutilizing the facility available to them under Notification No. 53/97-Cus., dated 3-6-1997" 22. We are not persuaded to agree that this observation by the Commissioner, unfounded on any material fact or evidence, points to a finding of collusion or suppression or misstatement. The use of the word "willful" introduces a mental element and hence, requires looking into the mind of the appellant by gauging its actions, which is an indication of one's state of mind. Black's Law Dictionary, Sixth Edition (pp 1599) defines "willful" in the following manner :- "Willful. Proceeding from a conscious motion of the will; voluntary; knowingly; deliberate. Intending the result which actually comes to pass... An act or omission is "willfully" done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done..." 23. In the present case, from the evidence adduced by the appellant, one will draw an inference of bona fide conduct in favour of the appella....
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....aud, collusion or willful misstatement of suppression of fact with intent to evade the payment of duty. It has been observed : '...Therefore, in order to attract the proviso to Section 11A(1) it must be alleged in the show-cause notice that the duty of excise had not been levied or paid by reason of fraud, collusion or willful misstatement or suppression of fact on the part of the assessee or by reason of contravention of any of the provisions of the Act or of the Rules made thereunder with intent to evade payment of duties by such person or his agent. There is no such averment to be found in the show cause notice. There is no averment that the duty of excise had been intentionally evaded or that fraud or collusion had been practiced or that the assessee was guilty of wilful misstatement or suppression of fact. In the absence of any such averments in the show-cause notice it is difficult to understand how the Revenue could sustain the notice under the proviso to Section 11-A(1) of the Act.' It was held that the show cause notice must put the assessee to notice which of the various omissions or commissions stated in the proviso is committed to extend the period fro....
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....rily be issued within one year from the relevant date. The proviso to section 73(1) allows an extended period of up to five years only where the nonpayment or short payment of service tax is due to fraud, collusion, wilful misstatement, suppression of facts, or contravention of the provisions of the Act or Rules, with an intent to evade payment of service tax. 9.1 It is evident from the communication dated 2-12-2013 issued by the Deputy Commissioner of Central Excise, Ahmedabad-III, directing the appellant to furnish the documents relating to their activities, that the department was already aware of the nature of the appellant's operations as early as in 2013. Despite such awareness, the department issued the show cause notice after an inordinate delay, well beyond the ordinary period of limitation, and sought to justify it by invoking the extended period. 9.2 There is no dispute that the services rendered by the appellant were not exempt from service tax until Notification No. 25/2012-S.T., dated 20-6-2012 was issued. The records reveal that the appellant was under a bona fide belief that the activity of enrolment, collection, processing, and storage of umbilica....
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....ary to the contention of the appellant. The Tribunal noted that dhoop sticks are different products from agarbatis even though they belonged to the same category and the Tribunal was of the view that these were to be treated differently. Therefore, the clarification given in the context of the agarbatis could not be applicable to dhoop sticks etc. and the Tribunal came to the conclusion that inasmuch as the appellant had manufactured the goods without informing the central excise authorities and had been removing these without payment of duty, these would have to be taken to attract the mischief of the provisions of Rule 9(2) and the longer period of limitation was available. But the Tribunal reduced the penalty. Counsel for the appellant contended before us that in view of the trade notices which were referred to by the Tribunal, there is scope for believing that agarbatis were entitled to exemption and if that is so, then there is enough scope for believing that there was no need of taking out a licence under Rule 174 of the said Rules and also that there was no need of paying duty at the time of removal of dhoop sticks, etc. Counsel further submitted that in any event apart from....
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....ere excisable or required to be licensed, would not attract the penal provisions of Section 11-A of the Act. If the facts are otherwise, then the position would be different. It is true that the Tribunal has come to a conclusion that there was failure in terms of Section 11-A of the Act. Section 35-L of the Act, inter alia, provides that an appeal shall lie to this Court from any order passed by the appellate tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purpose of assessment. Therefore, in this appeal, we have to examine the correctness of the decision of the Tribunal. For the reasons indicated above, the Tribunal was in error in applying the provisions of Section 11-A of the Act. There were no materials from which it could be inferred or established that the duty of excise had not been levied or paid or short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of the Act or of the Rules made thereunder. The Tribunal in the appellate order has, however, reduced....
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....alue of the exempted goods under T.I. 68 and also value of medicines containing alcohol, according to their interpretation, were not required to be included for the purpose of reckoning of the total excisable goods cleared by them. There is nothing on record to show that the appellants non-bona fidely held back information about the total value of the goods cleared by them with a view to evade payment of duty. Their explanation that it was only on the basis of their interpretation that the value of the exempted goods were not required to be included that they did not include the value of the exempted goods which they manufactured at the relevant time and falling under T.I. 68 is acceptable in the facts of that case. The departmental authorities were in full knowledge of the facts about manufacture of all the goods manufactured by them when the declaration was filed by the appellants. That they did not include the value of the product other than those falling under T.I. 14-E manufactured by the appellants has to be taken to be within the knowledge of the authorities. They could have taken corrective action in time. We therefore find there was no warrant in invoking longer time-limit....
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....The respondent did not include the value of the product other than those falling under T.I. 14-E manufactured by the respondent and this was in the knowledge, according to the Tribunal, of the authorities. These findings of the Tribunal have not been challenged before us or before the Tribunal itself as being based on no evidence.' (iii) Pushpam Pharmaceuticals Co. v. CCE [1995 Supp (3) SCC 462 = 1995 (78) E.L.T. 401 (S.C.)] "4. Section 11-A empowers the Department to reopen proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. The meaning of the word both in law and even otherwise is well known. In normal understanding it is not different that what is explained in various dictionaries unless of course the context in which it has been used indicates otherwise. A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or wilful default. Infact it is the mil....
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....fication has proceeded on a matter of concession of facts we do not allow the appellants to withdraw from that concession. They are now not permitted to argue on the question of classification." 17. In Pahwa Chemicals (P) Ltd. v. CCE [2005 (189) E.L.T. 257 (S.C.)] this Court held: "The appellants have all along claimed that merely because they were affixing the label of a foreign party, they did not lose the benefit of Notification No. 175/86-C.E. as amended by Notification No. 1/93-C.E. The view taken by the appellants had, in some cases, been approved by the Tribunal which had held that mere use of the name of a foreign party did not disentitle a party from getting benefit of the notifications. It is only after Larger Bench held in Namtech Systems Ltd. v. CCE [2000 (115) E.L.T. 238 (Tri. - LB)] that the position has become clear. It is settled law that mere failure to declare does not amount to wilful misdeclaration or wilful suppression. There must be some positive act on the part of the party to establish either wilful misdeclaration or wilful suppression. When all facts are before the Department and a party in the belief that affixing of a label makes no difference do....