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TMI Blog2022 (11) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant, as an individual person, is engaged in supplying labour. On the basis of an audit objection that the appellant had short paid service tax in respect of 'man power supply' and 'rent a cab service', a show cause notice dated 14.07.2010 was issued to the appellant by invoking the extended period of limitation contemplated under the proviso to section 73(1) of the Finance Act, 1994 [the Finance Act]. The appellant filed a reply contesting the demand raised both on merits as well as on limitation but the adjudicating authority by order dated 08.10.2012 confirmed the demand raised in the show cause notice dated 14.07.2010 for the period 2005-2006 and 2008-2009. The appeal filed by the appellant before the Commissioner (Appeals) was dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue on merits. 7. Section 73(1) of the Finance Act, which deals with recovery of service tax not levied or paid or short levied or short paid or erroneously refunded, as it stood at the relevant time, is reproduced below: "SECTION 73. Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded. (1) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requiring him to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f services provided by them in their ST-3 returns filed from time to time. Had the same has not been detected by the department, the said value would have remained escaped from levy of service tax. Thus, it is clear that Noticee with intend to evade service tax mis declared the value of services provided, therefore are liable to penalty.*****" 10. The Commissioner (Appeals) observed as follows: "6. ***** As regards the issue that the present demand is time barred as the show cause notice has been issued after expiry of one year, I find that the Adjudicating authority has correctly invoked the extended period of limitation under the proviso to Section 73(1) of the Finance Act, 1994 for the demand of Service tax in this case." 11. It woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme 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. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viso to Section 11-A of the Act. We are, therefore, of the firm opinion that where facts were known to both the parties, as in the instant case, it was not open to CEGAT to come to a conclusion that the appellant was guilty of "suppression of facts." (emphasis supplied) 15. The aforesaid decisions of the Supreme Court were relied upon by the Supreme Court in Uniworth Textiles Ltd. vs. Commissioner of Central Excise, Raipur [2013 (288) E.L.T. 161 (SC)] and the relevant portion of the judgment is reproduced below: "12. We have heard 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11A the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equated with a wilful misstatement. The latter implies making of an incorrect statement with knowledge that the statement was not correct." (emphasis supplied) 17. In view of the aforesaid decisions of the Supreme Court, the confirmation of demand for the period beyond the normal period of limitation by invoking the proviso to section 73(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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