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TMI Blog2022 (8) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... rt observed that section 11A of the Central Excise Act empowers the Department to reopen the proceedings if levy has been short levied or not levied within six months from the relevant date but the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. It is, therefore, clear that the suppression of facts should be deliberate and in taxation laws it can have only one meaning, namely that the correct information was not disclosed deliberately to escape payment of duty. The confirmation of demand for the period beyond the normal period of limitation by invoking the proviso to section 73(1) of the Finance Act cannot be sustained - the impugned order to the extent it has confirmed the demand for the extended period of limitation is set aside. The confirmation of demand for the normal period is, however, sustained - appeal allowed in part. X X X X Extracts X X X X X X X X Extracts X X X X ..... e 16.12.2010 16.12.2010 8. 31.12.210 Krishna Security Services 7816 1513 7816 7570 Invoices don't bear ST Registration. ST- 2 not provided. Original invoice dt. 07.07.2011 not available. 31.12.2010 11.02.2011 07.03.2011 9. 29.03.2011 S R Engines 87.55 Original/Photocopy of invoice not available 10. 19.04.2011 Consulting Chamber 515 The invoice appears to be raised for their own construction works at Faizabad Road. 11. 28.04.2011 Krishna Security Services 5043 Original/Photocopy of invoice not available 12. 13.05.2011 Schwing Stetter (India) Pvt. Ltd. 1545 Original/Photocopy of invoice not available 13. 26.05.2011 Shubham Engineers 11547 Original/Photocopy of invoice not available 14. 01.10.2011 Shri Ram Security Service 2008 432 924 3621 5776 6074 6495 6221 6221 Original/Photocopy of invoice not available 09.10.2011 03.11.2011 03.12.2011 03.01.2012 03.02.2012 01.03.2012 15. 05.11.2011 Consulting Chamber 463 Original/Photocopy of invoice not available 16. 25.02.2012 S R Engines Sales & Services 103 88 968 968 Original/Photocopy of invoice not available 15.03.2012 19.03.2012 26.03.2012 Total 119755 3. The sol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax payment under Works contract services and have shown incorrect value of taxable services in their ST-3 returns and failed to deposit the correct service tax. Thus it is evident that the party has willfully suppressed this material information from the Department with intent to evade payment of service tax. The party by their above omission and commission has contravened the provisions of Section 68 of the Finance Act, 1994 read with Rule 6 of the Service Tax Rules, 1994 by way of willful suppression of facts to evade payment of service tax during the years, as discussed in foregoing paras, therefore, proviso to Section 73(1) of the Act for extended period of time is invokable for recovery of service tax short paid by them and the party is also liable for penalty under Section 78 of the Finance Act, 1994. 4.2. The party has suppressed this material fact of rendering 'Site Preparation Services from the department and they even did not applied for registration to incorporate the said service in their Service Tax registration certificate. Thus, the party has violated the provisions of Section 69 of the Finance Act'1994 and therefore they appears to be liable for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice tax. Unless the adjudicating authority had come to a conclusion that the extended period of limitation was rightly invoked in the show cause notice, it could not have confirmed the demand for any period beyond the normal period of limitation. 7. In Pushpam Pharmaceuticals Company vs. Collector of Central Excise, Bombay [1995 (78) E.L.T. 401 (SC)], the Supreme Court observed that section 11A of the Central Excise Act empowers the Department to reopen the proceedings if levy has been short levied or not levied within six months from the relevant date but the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. It is in this context that the Supreme Court observed:- "2. ****** The Department invoked extended period of limitation of five years as according to it the duty was short-levied due to suppression of the fact that if the turnover was clubbed then it exceeded Rupees Five lakhs. ******** 4. A perusal of the proviso indicates that it has been used in company of such strong works as fraud, collusion or willful default ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d both sides, Mr. R.P. Batt, learned senior counsel, appearing on behalf of the appellant, and Mr. Mukul Gupta, learned senior counsel appearing on behalf of the Revenue. We are not convinced by the reasoning of the Tribunal. The conclusion that mere non-payment of duties is equivalent to collusion or willful misstatement or suppression of facts is, in our opinion, untenable. If that were to be true, we fail to understand which form of non-payment would amount to ordinary default? Construing mere non-payment as any of the three categories contemplated by the proviso would leave no situation for which, a limitation period of six months may apply. In our opinion, the main body of the Section, in fact, contemplates ordinary default in payment of duties and leaves cases of collusion or wilful misstatement or suppression of facts, a smaller, specific and more serious niche, to the proviso. Therefore, something more must be shown to construe the acts of the appellant as fit for the applicability of the proviso." (emphasis supplied) 11. The Supreme Court in Continental Foundation Joint Venture vs. Commissioner of Central Excise, Chandigarh [2007 (216) E.L.T. 177 (SC)] also observed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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