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TMI Blog2014 (11) TMI 871X X X X Extracts X X X X X X X X Extracts X X X X ..... evade payment of duty in such person. The provision under Section 73(1) of the Finance Act, is no different from what is contained under Section 11A of Central Excises and Salt Act, 1944; thus, with the requirement of ‘with intent’ to evade payment of Service Tax, indicating element of deliberate avoidance or evasion, the show cause notice must contain materials to have the benefit of extended limitation. Thus, when the notice contains no such allegation, the Revenue’s case cannot be brought under the extended time limit to hold that the proceedings are saved by the extended limitation. In the circumstances, we hold that the notice issued on 16-10-2007, for the period from November, 2005 to May, 2006, is without any jurisdiction. Consequently, any demand of tax, penalty of interest in this case, is without jurisdiction. - Decided against Revenue. - C.M.A. No. 3080 of 2011 - - - Dated:- 4-10-2013 - Chitra Venkataraman and T.S. Sivagnanam, JJ. Shri E. Vijay Anand, for the Appellant. Shri Hari Radhakrishnan, for the Respondent. JUDGMENT The Revenue has filed this Civil Miscellaneous Appeal against the Final Order No. 556/2010, dated 14-5-2010, passed by the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignments transported in a goods carriage does not exceed rupees one thousand five hundred; or (ii) the gross amount charged on an individual consignment transported in a goods carriage does not exceed rupees seven hundred fifty. Explanation - For the purposes of this Notification, an individual consignment means all goods transported by a goods transport agency by road in a goods carriage for a consignee. 3. The Revenue stated that the assessee was liable to pay the differential duty for the period November, 2005 and May, 2006 as per Section 73 of Chapter V and VA of Finance Act, 1994. Revenue viewed that as the assessee had concealed the fact of freight charges paid by them over and above ₹ 750/- on the individual consignments upto September, 2006 and had wilfully excluded the freight charges paid by them above ₹ 750/- upto ₹ 1,500/- and paid tax on the freight charges exceeding ₹ 1,500/- for the individual consignment. Thus taking shelter under the Proviso to sub-section (1) of Section 73 of the Finance Act, 1994, for the extended period limit it demanded tax as well as penalty and interest under Section 78 and 75 of the Finance Act, 1994, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignment transported in a goods carriage for a consignee and the exemption limit of ₹ 1,500/- was prescribed in respect of multiple consignments transported on a goods carriage for multiple consignees. The assessee produced the data only as regards the payment that too belatedly and the assessee had indulged in suppression of facts with the intention to evade payment of tax. The appellate authority thus rejected the plea of limitation as well as the contention based on revenue neutrality. On the belated payment interest stood automatically attracted vide Commissioner of Trade Tax (UP) v. Kanhai Ram Thekedar reported in 2005-TIOL-76-SC-CT = 2005 (185) E.L.T. 3 (S.C.). Thus, on facts found on the willful suppression penalty levied under Section 78 of the Finance Act, held warranted. However, he reduced the quantum of penalty to ₹ 7,51,956/-, and held no separate penalty was warranted under Section 76 of the Finance Act, in view of the penalty confirmed under Section 78 of the Finance Act. 6. Aggrieved by the said order, the assessee filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal (hereinafter called as Tribunal ). 7. A reading of the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on multiple consignments when the gross value does not exceed ₹ 1,500/-, then the taxable service is exempted from payment of tax. The assessee s case falls for consideration in the excluded clause of the Notification that the freight paid on the individual consignment of goods transported by a goods transport agency by road in a goods carriage exceeded ₹ 750/- for transport of sugarcane into its factory. Hence, the exemption Notification would not be of any assistance to the assessee. Thus, according to the Revenue, the Tribunal committed a serious error in misconstruing the Notification. 10. Learned counsel appearing for the assessee, however, submitted that considering the fact that the impact of the Notification has not been properly considered by the Adjudicating Authority, the Tribunal rightly remitted the matter back to the Authority for consideration the very liability itself. Consequently, no serious objection could be taken to the order passed by the Tribunal. 11. We do not agree with the submission made by the learned counsel for the assessee. 12. The definition of Goods Transport Agency under Section 65(50)(b) prior to 1-5-2005 and up to 30-4-200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orners of the notification. We find from the order of the Tribunal that the Tribunal had considered only one aspect of the matter, namely, the scope of definition of Goods Transport Agency (GTA) as per 65(50b) of the Finance Act and it has not considered scope of the exemption notification vis-a-vis the assessee s transaction. 15. However, since the facts pleaded are not in dispute, as the counsel for the assessee pointed out that the period for which the demand was made related to November, 2005 to May, 2006, the issue raised on the circular assumes significance. Under normal circumstances, when the Service Tax has not been levied or paid or short levied or short paid, sub-section (1) of Section 73 of the Finance Act, states that the Central Excise officer may within a period of 18 months, serve notice on the person chargeable with the liability to pay Service Tax, which has not been levied or paid, which has been short levied or short paid or wrongly refunded, calling upon the assessee to show cause why he should not pay the amount specified in the notice. Proviso to Section 73(1) of the Finance Act, gives the extended period of limitation of one year as per the law relevant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that it has to be construed strictly. The Apex Court pointed out that the initial burden is on the department to prove that the situations visualized by the proviso existed. But once the department is able to bring on record materials to show that the appellant is guilty of any of those situations, which are visualized by the section, the burden shifts and then applicability of the proviso has to be construed liberally. 19. The proviso under Section 11A of Central Excises and Salt Act, 1944, contains the phrase with intent to evade payment of duty in such person. The provision under Section 73(1) of the Finance Act, is no different from what is contained under Section 11A of Central Excises and Salt Act, 1944; thus, with the requirement of with intent to evade payment of Service Tax, indicating element of deliberate avoidance or evasion, the show cause notice must contain materials to have the benefit of extended limitation. Thus, when the notice contains no such allegation, the Revenue s case cannot be brought under the extended time limit to hold that the proceedings are saved by the extended limitation. In the circumstances, we hold that the notice issued on 16-10-2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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