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TMI Blog2015 (7) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... at the only requirement for Revenue to be able to invoke extended period of five years is to establish suppression, collusion or wilful mis-statement with intent to evade service tax and the date on which Revenue discovered or became aware is not a variable in this equation. - impugned order clearly notes that the said amount was not reflected in the ST-3 return which itself is sufficient to establish suppression of facts on the part of the appellant to evade service tax. Further, the details about the said payment received were never submitted by the appellant during the enquiry. Indeed, the said details were, (had to be), obtained from the service recipient (SICCL). It is on record that Investigating Officer asked the appellant vide letter dated 02.02.2010 to submit the facts and figures, copies of work order, bank statement, etc., but the same were never supplied by the appellant and it was only then that the Investigating Officer called for the information/ details from the service recipient, SICCL. Mere perusal of the definition vis-a-vis the description of work (service) done by the appellant does not leave any scope to even entertain a reasonable doubt, leave alone reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in different cities of India as stated by Shri Mudit Saxena, authorised representative of SICCL). Penalties under sections 77 and 78 of the Finance Act, 1994 were also imposed. 2. The facts of the case are that SICCL issued a Work Order No.SICCL/SCH/AMRITSAR/WO/04 dated 17.06.2006 to the appellant for levelling of soil including filling of gorges/nallah, removing of shrubs, grass and rubbish, etc. at Sahara City Homes, Amritsar. Payments for the said work order were made vide cheque No.1956, dated 17.06.2006 and cheque No.1963, dated 21.06.2006 as mentioned earlier, totalling to ₹ 6,08,49,653/-. The appellant also issued a bill No. Sahara/06-07/01 dated 18.08.2006 for an amount of ₹ 6,08,49,000/- and in the particulars column of the bill it is stated being charges for agriculture land levelling, soil filling thereon and of gorges/nallah, removing of shrubs, grass and rubbish, etc. at vill. Manawala. Amritsar (Area covered 24.00 Acres (approx)) . It was seen that the appellant had not paid any service tax on the said service and had not shown this amount in its ST-3 returns. During investigation, it did not even submit details sought in spite of summons issued an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not have been issued in relation to the same period. It also cited a catena of judgements including the judgements of the Supreme Court in the cases of Uniworth Textiles Ltd. Vs. CCE, Raipur [2013 (288) ELT 161 (SC)] and CCE, Aurangabad Vs. Bajaj Auto Ltd. [2010 (260) ELT 17 (SC)] to contend that mere non-payment is not suppression of facts and that the onus to prove that there was wilful mis-statement or suppression of facts on the part of the appellant is on Revenue which it (i.e., the Revenue) has failed to discharge. It also referred to the judgement of the Delhi High Court in the case of CIT Vs. Kelvinator of India Ltd. [2002 ITR (256) (Delhi)] to contend that mere change of opinion of an Assessing Officer is not a ground for reassessment. (vii)The work done by the appellant related to activities of agricultural land levelling, which was excluded from the taxable service under Section 65 (105) (zzza) read with Section 65 (97a) of the Act. (viii) It was under a bona fide belief that the service tax was not leviable, (ix) It is incorrect to say that Shri Jitender Kumar, officer of the appellant did not deny the work order dated 17.06.2006; he merely stated that he was unable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is not a variable in this equation. As regards the judgements on this issue cited by the appellant, suffice to say that each of these judgements were given in the context of the facts and circumstances of each case. The need to individually take up those cases and distinguish to show their inapplicability to the present case is however obviated by the judgement of the Supreme Court which in the case of Tejas Network India Ltd. Vs. Commissioner [2015 (316) ELT A157 (SO)], in effect, held that extended period is invokable when clandestine removal for evasion of duty is established and date on which Revenue became aware of it is not relevant. 6. As regards the contention that suppression of facts has not been clearly brought out by the adjudicating authority, we find that the impugned order clearly notes that the said amount was not reflected in the ST-3 return which itself is sufficient to establish suppression of facts on the part of the appellant to evade service tax. Further, the details about the said payment received were never submitted by the appellant during the enquiry. Indeed, the said details were, (had to be), obtained from the service recipient (SICCL). It is on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to agriculture, irrigation, watershed development and drilling digging, repairing, renovating or restoring of water sources or water bodies . The appellant has tried to state that it did the work on the agricultural land as confirmed by the Patwari. In this regard it is suffice to say that even if it is presumed that the land on which work was done was agricultural land, the service rendered by the appellant was not in relation to agriculture. The service rendered to SICCL was in relation to a housing project in Amritsar. The appellant has only tried to obfuscate the issue by saying that the work was on agricultural land. As per Oxford dictionary, word agriculture means science or practice of farming, including cultivation of the soil for the growing of crops and the rearing of animals to provide food, wool and other products . It is evident that the service rendered by the appellant was in relation to none of these activities. In other words, the service rendered was not in relation to agriculture as claimed by the appellant. Even the appellant has not contended that the service rendered was in relation to agriculture. Thus, there was no scope for any confusion even with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d/-xxx (Majeed Siddiqui) Manager Sd/-xxx (S.B. Pandey) Manager Sd/-xxx (Sanjay Singh) Asst. Sr. Manager The appellant is claiming that there is no evidence that the work order was ever received by it. Even if that was the case, the fact remains that the appellant issued a Bill No. Sahara/06-07/01 dated 18.08.2006 (RUD-3) for the amount mentioned in Work Order dated 17.06.2006 and for the same work as mentioned in that work order. Also, RUD No.4 which has never been denied by the appellant, shows payment of ₹ 6,08,49,653/- (vide cheque No.1956. dated 17.06.2006 and cheque No.1963, dated 21.06.2006 for ₹ 3,06.88,653/- and ₹ 3,01,61,000/-respectively) against work order No.4 dated 17.06.2006. The RUD-4 is reproduced below:- (Amount in Rs.) Annexure-II S.No. Name of Party Address W.O. No. W.O. Date W.O. Amount Ch. No. Ch. Date Development amount paid Bill Date B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Rs. Six Crore Eight Lacs Forty Nine Thousand Only.) 60849000.00 For NKG INFRASTRUCTURE LIMITED Sd/-xxx (Authorised Signatory) Thus the said bill coupled with the payment details given in RUD-4 reproduced above clearly shows that the impugned service was rendered by the appellant and the payment therefor was received. 8. The appellant had stated that it was eligible for exemption under Notification No.17/2005-ST, dated 07.06.2005 that is applicable to the site formation and clearance, excavation and earthmoving and demolishing and such other similar activities referred to in sub-clause (97a) and (zzza) of clause 105 of Section 65 of the Act. provided by any person in the course of construction of roads, airports, railways, transport terminals, bridges, tunnels, dams, ports or other ports. No elaborate discussion is needed to state that the service rendered by the appellant was not in the course of construction of roads, airport, railways, transport terminal, bridges, tunnels, dams, ports or other ports and therefore, the said Notification (No.17/2005-ST) is clearly not attracted in this case. 9. As regards the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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