2017 (10) TMI 811 - HC - Service Tax

Levy of service tax - sale of airport entry tickets to visitors of airport - failure to collect service tax - it was the Assessee s case that it had not been permitted by the AAI to collect service tax for the period from 10th September 2004 to 1st March 2005 and that as soon as the AAI allowed the Assessee to do so with effect from 2nd March 2005, the Assessee obtained service tax registration and from that date onwards was paying service tax - extended period of limitation - whether the Department was justified in invoking the extended period of limitation of five years in terms of Clause (d) of the proviso to Section 73 (1) of the FA? Held that - the CESTAT appears to have failed to note certain important dates and therefore came to the erroneous conclusion that the invocation of extended period of limitation by the Department was justified - the Court is not satisfied in the present case that the Department was justified in invoking the extended period of limitation under clause (d) of the proviso to Section 73 (1) of the FA - the impugned order dated 2nd March 2017 passed by the CESTAT is without application of mind. The CESTAT erred in holding that the extended period of limitation in terms of the proviso to Section 73 (1) of the FA was rightly invoked by the Department. Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Whether the CESTAT's order dated 2nd March 2017 is perverse and without application of mind.
2. Whether the extended period of limitation under clause (d) of the proviso to Section 73 of the Finance Act, 1994 was rightly invoked by the Department.

Issue-wise Detailed Analysis:

1. Perverse and Without Application of Mind:
The High Court examined whether the CESTAT's order dated 2nd March 2017 was perverse and without application of mind. The Court noted several errors in the CESTAT's order, including incorrect dates and misquoting paragraphs from the Supreme Court's decision in P.C. Paulose. The CESTAT erroneously set out para 5 of its own order instead of the Supreme Court's order, demonstrating non-application of mind. The Court found that the CESTAT failed to address the central issue of whether the Department was justified in invoking the extended period of limitation under Section 73 (1) of the Finance Act, 1994.

2. Extended Period of Limitation:
The Court analyzed whether the Department was justified in invoking the extended period of limitation under clause (d) of the proviso to Section 73 (1) of the Finance Act. The Assessee had not collected service tax from 10th September 2004 to 1st March 2005 because the Airports Authority of India (AAI) did not permit it. The Assessee obtained service tax registration and started collecting service tax from 2nd March 2005 onwards. The Department issued summons on 31st May 2005, which the Assessee replied to on 14th July 2005, providing all relevant documents. The Department issued another summons on 7th November 2005, which was replied to on 19th November 2005. The Court found that the Department was aware of all relevant facts within the one-year period from 1st March 2005, and there was no suppression of material facts by the Assessee.

The Court referred to the Supreme Court's decision in Uniworth Textiles Limited v. Commissioner of Central Excise, Raipur, which held that mere non-payment of duties is not equivalent to collusion, wilful misstatement, or suppression of facts. The Department's invocation of the extended period of limitation was therefore unjustified.

Conclusion:
The High Court concluded that the CESTAT's order was without application of mind and that the extended period of limitation was wrongly invoked by the Department. Consequently, the impugned order dated 2nd March 2017 by the CESTAT, the order dated 6th May 2009 by the ACST, the order dated 6th January 2011 by the CAST, and the SCN dated 4th March 2008 were set aside. The appeal was allowed in favor of the Assessee, with no orders as to costs.

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