2016 (3) TMI 404 - AT - Service Tax

Extended period of limitation - Bonafide belief - Not seeking registration - Technical Inspection and Certification Agency - wilful misstatement / suppression of facts - Held that - Nothing has been brought out as to how the appellant was guilty of wilful misstatement / suppression of facts. An assessee who has a bonafide belief that it is not liable to tax would naturally not obtain registration, assess itself to tax or file returns. This by itself does not tantamount to wilful misstatement / the suppression of facts. The appellant initially took registration on 10.08.2000 thinking that it was providing management consultant service and even paid tax thereunder for a while before it was advised that it was not liable to pay service tax under Management Consultant Service by its legal Consultant, establishes its bonafides. Thus even in the show cause notice the only grounds on which wilfull misstatement/ suppression of facts has been alleged are that the appellant did not declare the service to the Department, did not obtain registration and did not pay tax. These grounds have been analysed above in the light of authoritative judicial pronouncements and held to be inadequate for the said purpose in the absence of any substantial evidence that all that was wilfull and to evade tax. Demand set aside - Decided in favor of assessee.

Issues Involved:
1. Competence of the adjudicating authority.
2. Classification of the service provided by the appellant.
3. Application of the principle of noscitur a sociis / ejusdem generis.
4. Allegation of wilful misstatement or suppression of facts.
5. Invocability of the extended period of limitation and penalties.

Detailed Analysis:

1. Competence of the Adjudicating Authority:
The appellant contended that the adjudicating authority was not competent as the case was assigned by the Chief Commissioner under Notification No. 6/2009-ST, which they argued only conferred powers related to cases involving penalties. The Tribunal clarified that Notification No. 6/2009-ST authorized the Chief Commissioners to exercise powers of the CBEC for assigning adjudication of cases, not limited to penalties. This was supported by Notification No. 16/2007-ST, which empowered the Chief Commissioner to assign adjudication of cases under the Finance Act, 1994. Consequently, the adjudicating authority was legally empowered to adjudicate the case.

2. Classification of the Service Provided by the Appellant:
The appellant argued that their services did not fall under "Technical Inspection and Certification Agency" as they merely accredited organizations for certifying entities and granting ISO certifications. The Tribunal reviewed the appellant's functions, which included assessing organizations for accreditation, ensuring they met international standards, and providing formal recognition of technical competence. The Tribunal held that these activities involved technical inspection and certification, thus falling within the definition provided in Section 65(108) of the Finance Act, 1994.

3. Application of the Principle of Noscitur a Sociis / Ejusdem Generis:
The appellant argued that the word "process" in the definition of "technical inspection and certification" should be limited to physical and chemical processes, citing the principle of noscitur a sociis / ejusdem generis. The Tribunal rejected this argument, stating that "goods" and "immovable property" do not form a society, and thus the principle could not be applied. Even if the principle were applied, the Tribunal noted that the appellant's activities involved physical verification processes, which would still fall within the scope of technical inspection and certification.

4. Allegation of Wilful Misstatement or Suppression of Facts:
The appellant contended that there was no wilful misstatement or suppression of facts, as they believed in good faith that they were not liable for service tax. The Tribunal noted that the adjudicating authority's findings on wilful misstatement or suppression were not substantiated with evidence. The Tribunal referenced judicial precedents, emphasizing that mere non-payment of tax or failure to register does not constitute wilful misstatement or suppression unless there is deliberate withholding of information. The appellant's actions, including obtaining legal advice and initially registering under a different service, indicated bona fides.

5. Invocability of the Extended Period of Limitation and Penalties:
The Tribunal held that the extended period of limitation and mandatory penalty under Section 78 were not invocable due to the lack of evidence supporting wilful misstatement or suppression of facts. The Tribunal allowed the appeal by remanding the case to the primary adjudicating authority for denovo adjudication, limiting the adjudication to the normal period of one year.

Conclusion:
The Tribunal concluded that the appellant provided "Technical Inspection and Certification Agency" services but was not guilty of wilful misstatement or suppression of facts. The case was remanded for denovo adjudication within the normal limitation period.

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