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TMI Blog2018 (8) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... s an entity under the control of the Government of Chhattisgarh. It does not belong to an individual who would evade tax to corner profit in its business activity - The explanation putforth by the CSIDC that it was under bona fide impression that being an entity under the control of Government it was not liable to pay service tax appears to be reasonable explanation, therefore, mere non registration under Section 65 or non payment of service tax on the maintenance charges collected from industries would not amount to wilful supression or mis-statement of fact, hence, the CESTAT has rightly held that the present is a case where the Revenue is not entitled to invoke the extended period of limitation - decided against Revenue. Maintainability of the cross-objection filed by the respondent - appeal to High Court against an order passed in appeal by the Appellate Tribunal - Section 35G(9) of the Act, 1944 - Held that:- In appeal under Section 35G of the Act, 1944 the provisions of the CPC relating to appeals to the High Court shall apply, therefore, by necessary consequence the provisions contained in Order 41 Rule 22 of the CPC would also apply because the said provision otherwise appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to have collected different amounts in the following manner : S. No. Period Amount Received Rate of Service Tax Service Tax Payable E Cess/ SHE Cess Payable 1 1-7-03 to 31-3-04 5390000 8% 431200 - 2 1-4-04 to 31-3-05 10581000 10.20% 1058100 21162 3 1-4-05 to 31-3-06 7326000 10.20% 732600 14652 4 1-4-06 to 31-3-07 22606000 12.25% 2712720 54254 5 1-4-07 to 31-3-08 12493000 12.36% 1499160 29983/14992 Total 56396000 6433780 120051/14992 4. A show notice was issued to the respondent on 8-7-2008 demanding service tax amounting to ₹ 65,68,823/- (including cess) under Section 73 of the Act, 1944 along with interest under Section 75 of the Act, 1944 and for imposition of penalty under Sections 76, 77 and 78 of the Act, 1944. 5. Upon adjudication, the Commissioner, Central Excise, Raipur, passed an order-in-original on 15-1-2009 confirming the demand of service tax to the tune of ₹ 50,58,361/- (including cess) along with interest, but dropped the demand of service tax prior to the period 16-6-2005. Penalty under Section 76 was also waived but penalty of ₹ 2,000/- was imposed under Section 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Finance, Government of India, wherein Entry No.5 dealing with services provided in lieu of fee charged by Government or a local authority, it is clarified that any activity undertaken by Government or a local authority against a consideration constitutes a service and the amount charged for performing such activities is liable to service tax. 11. The issue as to what would amount to wilful mis-statement or supression of fact has been dealt with by the Supreme Court in Uniworth Textiles Ltd. v CCE, Raipur [2013 (288) ELT 161 (SC)] wherein it has been held that mere non payment of duties is not equivalent to collusion or wilful mis-statement or supression of facts, otherwise there would be no situation for which ordinary limitation period would apply. Inadvertent non-payment is to be dealt within the normal limitation period and the burden is on Revenue to prove allegation of wilful mis-statement. 12. The Supreme Court in Anand Nishikawa Co. Ltd. v Commissioner of Central Excise, Meerut (2005) 7 SCC 749, referring to its earlier decision rendered in Pushpam Pharmaceuticals Company v Collector of Central Excise, Bombay 1995 Supp (3) SCC 462, held thus in paras 27 & 28 : 27. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities that there was any deliberate attempt of nondisclosure to escape duty, no claim as to "suppression of facts" could be entertained for the purpose of invoking the extended period of limitation within the meaning of proviso to Section 11A of the Act. 13. In the case at hand also, the CSIDC is an entity under the control of the Government of Chhattisgarh. It does not belong to an individual who would evade tax to corner profit in its business activity. The explanation putforth by the CSIDC that it was under bona fide impression that being an entity under the control of Government it was not liable to pay service tax appears to be reasonable explanation, therefore, mere non registration under Section 65 or non payment of service tax on the maintenance charges collected from industries would not amount to wilful supression or mis-statement of fact, hence, the CESTAT has rightly held that the present is a case where the Revenue is not entitled to invoke the extended period of limitation. The first substantial question of law is, thus, answered against the Revenue. 14. The additional question of law framed at the time of final hearing is about maintainability of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leave to appeal from it. Considerations of justice, therefore require that this Court should in appropriate cases permit a party placed in such a position to support the judgment in his favour even upon grounds which were negatived in that judgment". 17. We have, thus, no hesitation in answering the second question that cross-objection filed by the respondent is maintainable, however, at the time of hearing of appeal respondent's counsel failed to persuade us to frame any other question of law touching upon its liability to pay service tax on the ground that the Corporation having providing services in the sovereign capacity, it is not liable to pay service tax. Even otherwise we have already dealt with the circular issued by the CBDT (Central Board of Direct Taxes) holding that the maintenance services and other services provided by the respondent CSIDC to the industries within its industrial area, on payment of charges/ fees, is liable to pay service tax, therefore, even if the second question of law is answered in favour of the respondent, it does not effect the merits of the cross-appeal/cross-objection. 18. In the result, the appeal as well as the cross-appeal/ cro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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