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TMI Blog2023 (8) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax payable within one month of the issuance of OIO - HELD THAT:- The appellants claim to have paid only Rs.1,88,220/- out of total demand of Rs.4,46,078/- along with interest and 25% of the penalty. We find that in terms of Section 73 (3) of the Finance Act, 1994, the appellants are required to pay the service tax confirmed along with interest and 25% of the penalty; it is not open to the appellant to pay a portion of the demand that they think is payable and claim the benefit of the provision of law. Therefore, the appellants cannot take shelter under the provisions of Section 73 (3) of the Finance Act, 1994. Extended period of limitation - suppression of material facts or not - HELD THAT:- Suppression by itself may not indicate any intent. However, suppression coupled with the appellant s failure to disclose the amounts collected in the ST-3 returns; failure to deposit the applicable service tax, which they are not disputing, leads to the inevitable conclusion that the intent, to evade payment of service tax, is presentin this case considering the facts and circumstances - the extended period is rightly invoked. Levy of penalties - HELD THAT:- The interest of justice wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded, except Rs.1,88,220/-, and interest and penalties. He submits that the show-cause notice is time barred as there was no suppression of facts involved. Learned Counsel also submits that penalties can also not be imposed. He further submits that learned Adjudicating Authority or the Appellate Authority, for that matter, has not given the benefit of cum-duty while calculating the service tax payable. Learned Counsel, in support of his arguments, relies upon the following cases: Chemphar Drugs Liniments- 1989 (40) ELT 276 (SC). Aditya College of Competitive Exams- 2009 (16) STR 154 (Tri.) Omega Financial Service- 2011 (24) STR 590 (Tri.) First Flight Courier Ltd.- 2011 (2) STR 622 (P H). 3. Shri Narinder Singh, learned Authorized Representative for the Department, submits that the benefit of Notification No.12/2003 dated 28.06.2003, is available with the condition that there is documentary proof indicating the value of the said goods and materials. He relies on Ador Fontech Ltd.- 2014 (36) STR 146 (Tri. Mumbai) and submits that as the appellants have not submitted any documentary proof, exemption cannot be given. He submits that to claim the benefit, the value of the material shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of parts and Rs.100/- for the gift. On the contrary, it is the argument of the Department, in order to avail exemption from service tax on the above items, the appellants are required to satisfy the conditions laid down in the Notification No.12/2003; the appellants did not satisfy the conditions inasmuch as the said amounts are not reflected either in the invoices or in the books of accounts under relevant Heads and the appellants did not provide any proof like invoice etc. to show that those payments were for the purposes cited above and that applicable VAT/ Sales Tax has been paid on the same. 5. We find that Notification No.12/2003-ST dated 20.06.2003 is as follows: In exercise of the powers conferred by Section 93 of the Finance Act, 1994 (32 of 1994), the Central Government being satisfied that it is necessary in the public interest so to do, hereby exempts so much of the value of all the taxable services, as is equal to the value of goods and materials sold by the service provider to the recipient of service, from the service tax leviable thereon under Section (66) of the said Act, subject to condition that there is documentary proof specifically indicating the value of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon, on their own and have not filed any Returns in this regard. We find that the contention of the appellant is not acceptable. The word Suppression means to hide something ; by not filing the Returns and by not disclosing the material fact, the appellants have clearly suppressed the fact that they have collected the consideration from their customers for the services to be provided by them. Now the question arises as to whether such suppression was with an intent to evade payment of service tax. Suppression by itself may not indicate any intent. However, suppression coupled with the appellant s failure to disclose the amounts collected in the ST-3 returns; failure to deposit the applicable service tax, which they are not disputing, leads to the inevitable conclusion that the intent, to evade payment of service tax, is presentin this case considering the facts and circumstances. For this reason and as per our discussions above, we find that the ratio of the cases relied upon by the appellant will not be of any avail to them. 10. Therefore, we are of the considered opinion that the extended period is rightly invoked for the reasons cited above. Therefore, the demand of duty as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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