Mere non-payment of tax or non-discharge of liability does not suffice the ingredients for invoking extended period

[CA Bimal Jain]

The CESTAT, Mumbai in PRINCIPAL COMMISSIONER, SERVICE TAX, PUNE VERSUS M/S. NATIONAL INSTITUTE OF BANK MANAGEMENT, PUNE - 2023 (1) TMI 56 - CESTAT MUMBAI has held that mere non-payment of tax or non-discharge of liability does not suffice to alienate the responsibility of the ‘proper officer’ to offer convincing reasons for the belief that the ingredients for invoking extended period are evident.

Facts:

The Revenue Department (“the Appellant”) in this appeal has challenged the Order-in-0riginal passed by the Principal Commissioner of Service Tax Commissionerate, Pune dated December 9, 2015 (“the Impugned Order”) wherein the proceedings initiated in Show Cause Notice (“SCN”) dated April 15, 2014 for the period from 2008 to 2012 were dropped on the ground of being inconsistent with bar of limitation prescribed in Section 73 of the Finance Act, 1994 (“the Finance Act”) and for not being in compliance with the pre-requisite enabling the invoking of extended period.

Earlier, the proceedings were initiated against M/s National Institute of Bank Management (“the Respondent”) to fasten liability for having provided ‘taxable services’ in Section 65(105) of the Finance Act, 1994, with ‘commercial training and coaching centre’ as applicable to ‘post-graduate course in management’ offered by the Respondent.

Issue:

Whether the proceedings are in compliance for enabling the invoking of extended period?

Held:

The CESTAT, Mumbai in PRINCIPAL COMMISSIONER, SERVICE TAX, PUNE VERSUS M/S. NATIONAL INSTITUTE OF BANK MANAGEMENT, PUNE - 2023 (1) TMI 56 - CESTAT MUMBAI held as under:

• Stated that, while lack of knowledge could be a defence in proceedings, it is not the knowledge or awareness that is on trial but the suppression of fact/wilful misstatement/ fraud which must be evinced in the SCN issued in pursuance of Section 73 of the Finance Act.
• Mere non-payment of tax or non-discharge of the liability does not suffice to alienate the responsibility of the ‘proper officer’ to offer convincing reasons for the belief that the ingredients for invoking extended period are evident.
• Relied on the judgment of the Hon’ble Supreme Court in NIZAM SUGAR FACTORY Versus COLLECTOR OF CENTRAL EXCISE, AP - 2006 (4) TMI 127 - Supreme Court wherein it was held that, when SCN has been issued for the earlier period on certain set of facts, then, on the same set of facts another SCN based on the same/similar set of facts invoking the extended period of limitation on the plea of suppression of facts by the assessee cannot be issued as the facts were already in the knowledge of the department.
• Held that, this appeal of Revenue seeking recovery as proposed in the demand by invoking of the extended period for subsequent period of time is not correct in law.

Relevant Provisions:

Section 73 of the Finance Act:

“Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded-

(1) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, Central Excise Officer may, within thirty months from the relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice :

Provided that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of -

 (a) fraud; or

(b) collusion; or

(c) wilful mis-statement; or

(d) suppression of facts; or

(e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of 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 “thirty months”, the words “five years” had been substituted.

Explanation- Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of thirty months or five years, as the case may be.

(1A) Notwithstanding anything contained in sub-section (1) except the period of thirty months of serving the notice for recovery of service tax), the Central Excise Officer may serve, subsequent to any notice or notices served under that sub-section, a statement, containing the details of service tax not levied or paid or short levied or short paid or erroneously refunded for the subsequent period, on the person chargeable to service tax, then, service of such statement shall be deemed to be service of notice on such person, subject to the condition that the grounds relied upon for the subsequent period are same as are mentioned in the earlier notices.

(1B) Notwithstanding anything contained in sub-section (1), in a case where the amount of service tax payable has been self-assessed in the return furnished under sub-section (1) of section 70, but not paid either in full or in part, the same shall be recovered along with interest thereon in any of the modes specified in section 87, without service of notice under sub-section (1).

(2) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of service tax due from, or erroneously refunded to, such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined :

(2A) Where any appellate authority or tribunal or court concludes that the notice issued under the proviso to sub-section (1) is not sustainable for the reason that the charge of,-

(a) fraud; or

(b) collusion; or

(c) wilful misstatement; or

(d) suppression of facts; or

(e) contravention of any of the provisions of this Chapter or the rules made thereunder with intent to evade payment of service tax, has not been established against the person chargeable with the service tax, to whom the notice was issued, the Central Excise Officer shall determine the service tax payable by such person for the period of thirty months, as if the notice was issued for the offences for which limitation of thirty months applies under sub-section (1). 

(3) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded, on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise Officer before service of notice on him under sub-section (1) in respect of such service tax, and inform the [Central Excise Officer] of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid : Provided that the Central Excise Officer may determine the amount of short-payment of service tax or erroneously refunded service tax, if any, which in his opinion has not been 18 paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of “thirty months” referred to in sub- section (1) shall be counted from the date of receipt of such information of payment.

Explanation.1- For the removal of doubts, it is hereby declared that the interest under section 75 shall be payable on the amount paid by the person under this sub-section and also on the amount of short payment of service tax or erroneously refunded service tax, if any, as may be determined by the [Central Excise Officer], but for this sub-section.

Explanation 2. - For the removal of doubts, it is hereby declared that no penalty under any of the provisions of this Act or the rules made thereunder shall be imposed in respect of payment of service tax under this sub-section and interest thereon. (4) Nothing contained in sub-section (3) shall apply to a case where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of -

(a) fraud; or

(b) collusion; or

(c) wilful mis-statement; or

(d) suppression of facts; or

(e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax.

(4B) The Central Excise Officer shall determine the amount of service tax due under sub-section (2)-

(a) within six months from the date of notice where itis possible to do so, in respect of cases falling under sub-section (1);

(b) within one year from the date of notice, where it is possible to do so, in respect of cases falling under the proviso to sub-section (1) or the proviso to sub-section (4A)].

(5) The provisions of sub-section (3) shall not apply to any case where the service tax had become payable or ought to have been paid before the 14th day of May, 2003. (6) For the purposes of this section, “relevant date” means, -

(i) in the case of taxable service in respect of which service tax has not been levied or paid or has been short-levied or short-paid -

(a) where under the rules made under this Chapter, a periodical return, showing particulars of service tax paid during the period to which the said return relates, is to be filed by an assessee, the date on which such return is so filed;

(b) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules;

(c) in any other case, the date on which the service tax is to be paid under this Chapter or the rules made thereunder; 

(ii) in a case where the service tax is provisionally assessed under this Chapter or the rules made there under, the date of adjustment of the service tax after the final assessment thereof;

(iii) in a case where any sum, relating to service tax, has erroneously been refunded, the date of such refund.”

(Author can be reached at [email protected])