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TMI Blog2012 (11) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... not a case of mere omission to give correct information; it was devised deliberately so to evade tax liability - limit of exemption was known and provisions of Rule 3(5) of the Rules of 2002 are clear. Thus, it was deliberate suppression of facts - five years' period of limitation has been rightly invoked - 48 OF 2011 - - - Dated:- 30-4-2012 - ARUN MISHRA, MAHESH BHAGWATI, JJ. M.R. Devnath and Sameer Jain for the Appellant. ORDER 1. Appeal has been preferred under Section 35G of the Central Excise Act, 1944 as against order dated 28.6.2011 passed by the Customs, Excise Service Tax Appellate Tribunal, New Delhi (in short, 'the Tribunal') in Appeal No.ST/246/2008-CU[DB]. 2. Appellant was inter alia engaged in providing cellular telephone service in Jaipur Circle. It was registered and paying service tax under 'telephone services'. Appellant was receiving various input services and availing Service Tax Credit on the same in terms of Service Tax Credit Rules, 2002 (hereinafter referred to as 'the Rules of 2002'). The appellant was also receiving roaming (National International) charges from other telecom operators. Roaming charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be limited to 35% in respect of each return period when Cenvat credit is claimed for set off. Accordingly, liability of the appellant was ordered to be recalculated giving set off on Cenvat credit limiting to 35% in respect of each return period. The Tribunal accordingly held that the adjudication shall end in re-computing service tax demand. The Tribunal has relied upon the decision in Idea Cellular Ltd. case ( supra ). However for the issue of extended period alongwith interest and penalty, the Tribunal has confirmed the invocation of extended period of limitation and upheld the penalty imposed under Section 76 of the Finance Act, 1994 (hereinafter referred to as the Act of 1994 ) and so far penalty under Section 78 of the Act of 1994 is concerned, that has been ordered to be limited to the quantum of tax payable upon re-computation as directed by the Tribunal. However, the authority was directed to examine whether concession in penalty is permissible under second proviso to Section 78 of the Act of 1994. Appeal has been allowed to the aforesaid extent. 4. Learned counsel appearing on behalf of the appellant has submitted that in the instant case provision of limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 the 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 one year , the words five years had been substituted, so as to initiate the proceedings to pay the amount specified in a notice. Thus, service of notice within five years from the relevant date is sustainable in law. It is apparent that excess credit was utilized by the appellant to the extent of ₹ 35,99,882/- from May 2003 to August 2004. Finding has been recorded by the Additional Commissioner that the assessee has contravened the provisions of Section 68 of the Act read with Rule 6 of Service Tax Rules, 1994 and Rules 3 and 4 of the Rules of 2002 by such wrongful availment and utilization of Cenvat credit. Therefore, the assessee is liable for penalty under Sections 76 and 78 of the Act of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gets no immunity from penal consequences. Suppression corroborated by an untrue declaration in the return filed calls for levy of penalty. When the return contains a declaration as to the self assessment particulars stating that the assessee had paid service tax correctly in terms of provisions of the Act and Rules made thereunder such declaration becomes faulty in absence of bona fide statement either on the return or made through a letter accompanying the return. Once the appellant has claimed that service tax has been paid in accordance with the law and this is not paid, that imputes the appellant to the charge. Such view brings harmony in construction of law and for effective implementation thereof in respect of self assessment procedure. The act of false declaration can be remedied by levy of penalty. Thus penalty levied under Section 76 is confirmed and so far as penalty under Section 78 is concerned that shall be limited to the quantum of tax payable upon re-computation as directed aforesaid. However, the authority shall examine whether concession in penalty is permissible under second proviso to section 78 of the Act. Interest as required under Section 75 shall be payable o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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