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TMI Blog2015 (8) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... ices to be rendered after 01/05/2006, but they were not aware that the service tax liability would arise. On limitation, it was the submission that they were under the bonafide impression that the service tax liability may not arise on an amount received as advance for the journeys to be conducted after 01/05/2006. The adjudicating authority did not agree with the contentions raised and confirmed the demands along with interest and also imposed penalties. 3. The learned Chartered Accountant would draw our attention to the facts of the case as also to the show-cause notice and the order-in-original. On merits, it is his submission that prior to 01/05/2006 any amount collected by the appellants were for the services which were not under tax net and the taxability of the services rendered to their customers on first class and business class were effective from 01/05/2006. They would submit that they could not be held liable to pay such service tax for the amount collected in advance. For this proposition, he relied upon the Notification No. 36/2010-ST dated 28/06/2010 and the clarification issued by the Board consequent to such issuance of notification and submits that from 01/07/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department about the amounts received in advance from the passengers for the services and having not declared such an amount, there was an element of mis-statement and hence, invocation of extended period was correct. 5. We have considered the submissions made at length by both sides and perused the records. 5.1 The issue involved is regarding the taxability of an amount on the services, which came into service tax net from 01/05/2006; it is not disputed that the amount on which the tax liability under the service is of are the amounts, which were received in advance by the appellant from the passengers, who took the services either entirely or partially after 01/05/2006. 5.2 We would like to record that the reliance placed by the learned Chartered Accountant on the Board's Circular No. 334/3/2010-TRU dated 01/07/2010 will not carry the appellant's case any further, as the circular is not for the relevant period in hand; as also we see from the Circular that the said circular was issued specifically in respect of notification No. 36/2010-ST, while the issue in hand it pertains to the situations wherein new services were brought into tax net from 01/05/2006. On merits, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not in dispute. It can be noticed from the letter received by the appellant from the office of the Assistant Commissioner, service tax specific details were called for and such details were given. In our view the appellant had volunteered the information as soon it was sought by the departmental authorities. In our view the details which were not sought could not have been supplied by the appellant as against this, on limitation, the findings of the adjudicating authority are as follows: "4.3. On going through the submission, the case records and the relevant provisions, I find that the Noticee had indeed requested the Board to grant exemption for the services provided after 01.05.2006 for which payments have been received before 01.05.2006. The department communicated Board's decision vide F.No. ST/Div III/GIII/Misc-5/09 dated 06.08.2009 that exemption cannot be granted. Even after receiving the clarification from the Board, NACIL had not paid the Service Tax on the tickets issued/service rendered by them from 01.05.2006. Thus NACL intentionally evaded the payment of Service Tax. They chose not to comply with the provisions of the Act and the Rules made there under to av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ratio of the Apex Court in the case of Uniworth Textiles Ltd., (supra), which is in paragraph Nos. 22, 23, 24 & 25, which we respectfully reproduce: 22. We are not persuaded to agree that this observation by the Commissioner, unfounded on any material fact or evidence, points to a finding of collusion or suppression or misstatement. The use of the word "willful" introduces a mental element and hence, requires looking into the mind of the appellant by gauging its actions, which is an indication of one's state of mind. Black's Law Dictionary, Sixth Edition (pp 1599) defines "willful" in the following manner: - "Willful. Proceeding from a conscious motion of the will; voluntary; knowingly; deliberate. Intending the result which actually comes to pass... An act or omission is "willfully" done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done..." 23. In the present case, from the evidence adduced by the appellant, one will draw an inference of bona fide conduct in favour of the appellant. The appellant laboured under the very doubt which forms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he payment of duty. It has been observed: '...Therefore, in order to attract the proviso to Section 11- A(1) it must be alleged in the show-cause notice that the duty of excise had not been levied or paid by reason of fraud, collusion or willful misstatement or suppression of fact on the part of the assessee or by reason of contravention of any of the provisions of the Act or of the Rules made thereunder with intent to evade payment of duties by such person or his agent. There is no such averment to be found in the show cause notice. There is no averment that the duty of excise had been intentionally evaded or that fraud or collusion had been practiced or that the assessee was guilty of wilful misstatement or suppression of fact. In the absence of any such averments in the show-cause notice it is difficult to understand how the Revenue could sustain the notice under the proviso to Section 11- A(1) of the Act.' It was held that the show cause notice must put the assessee to notice which of the various omissions or commissions stated in the proviso is committed to extend the period from six months to five years. That unless the assessee is put to notice the assessee would h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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