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TMI Blog2023 (8) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... the ST-3 return that the fact that appellant were discharging Service tax on Transport of Goods in container by Rail service and availing Cenvat credit and utilized the Cenvat credit was in the knowledge of the Revenue. However show cause notice to the Appellant was issued on 26.02.2013. Inasmuch as the entire information was in the knowledge of the Revenue, the longer period of limitation is not available - the show cause notice should have been issued within the normal period of one year as prescribed under Section 73(1), whereas the show cause notice for the period April 2008 to March 2009 was issued on 26.02.2013 i.e. after prescribed limit of one year. As per the fact, there is no suppression of fact on the part of the appellant. It is admitted fact that the appellant have taken service tax registration and are filing the periodical returns regularly. The appellant have maintained proper books of accounts in the normal course of business. It is pertinent to note that the entire case of the department on merit is that since appellant have availed Cenvat Credit, they violated the condition of abatement notification No. 01/2006-ST - availment of Cenvat Credit and payment of Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission amount alongwith interest and penalties. Aggrieved by the said order, the appellant are in appeal before this Tribunal. 2. Shri Abhishek Doshi, Learned Chartered Accountant appearing on behalf of the appellant submits that appellant has acted only as mediator/ facilitator for procurement of space in railway rack on behalf of their clients. Appellant firm has procured space from M/s ETA Engineering Pvt. Ltd. (Authorized agent of Indian Railways) whose charges are unanimous for all parties. The appellant has charged their facilitation /commission charges + transport charges paid to M/s ETA on actual basis to their customers. Therefore appellant is liable for tax only on their facilitation /commission charges. However, appellant has by mistake, shown gross amount (including transportation charges recovered on behalf of M/s ETA) in ST-3 returns and compensated /offset the same by showing Cenvat Credit on amount paid to M/s ETA. The appellant was only required to reflect their facilitation /commission charges and to discharge the service tax liability on the same. 2.1 He argued that appellant has not actually availed any CENVAT credit for the period under consideration. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly, even if the amount is treated as reimbursement of expenses, the same cannot be subject matter of the Service tax. 2.6 Further on limitation he submits that the appellant firm has been registered with department since 2008-09 and has been regular in payment of taxes and filing of returns. Even if it is presumed that service tax is payable, the appellant has disclosed all the facts relating to availment of CENVAT credit in ST-3 returns filed by them. Appellant has neither suppressed any facts nor mis-stated any facts with an intention to evade payment of taxes. It is mentioned in the show cause notice that the appellant has filed ST-3 returns without mentioning category and hence they have willfully suppressed the facts. In this regards , it is submitted that the Appellant has shown category of Transport of Goods by Rail services in all ST-3 returns and the Appellant has also shown the fact that they were availing CENVAT Credit. Along with ST-3 return they also filed annual working sheet. Therefore, the facts related to category of services and availment of CENVAT credit were very well in the knowledge of the department. The show cause notice does not have any evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3; or collusion‟ and therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of taxes. Suppression means failure to disclose full information with intent to evade payment of taxes. 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. The burden is cast upon the revenue to prove suppression of facts. An incorrect statement cannot be equated with a willful misstatement. The latter implies making of an incorrect statement with the knowledge that statement was not correct. As far as fraud and collusion are concerned, it is evident that the intent to evade of tax is built into these very words. So far as mis-statement or suppression of facts are concerned, they are clearly qualified by the word wilful‟, preceding the words mis-statement or suppression of facts which means with intent to evade tax. Therefore, there cannot be suppression or mis-statement of fact, which is not wilful and yet constitute a permissible ground for the purpose of the invocation of extended period. Mis-statement of must be wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of these facts the show cause notice should have been issued within the normal period of one year as prescribed under Section 73(1), whereas the show cause notice for the period April 2008 to March 2009 was issued on 26.02.2013 i.e. after prescribed limit of one year. As per the above fact, there is no suppression of fact on the part of the appellant. We also find that it is admitted fact that the appellant have taken service tax registration and are filing the periodical returns regularly. The appellant have maintained proper books of accounts in the normal course of business. It is pertinent to note that the entire case of the department on merit is that since appellant have availed Cenvat Credit, they violated the condition of abatement notification No. 01/2006-ST. As discussed above the facts that availment of Cenvat Credit and payment of Service Tax on the abated value were declared in the ST-3 return. Hence, having all the facts were disclosed to the department, nothing prevented department from issue of show cause notice within normal period of one year. Therefore, the demand raised in the show cause notice is clearly time-barred. 4.3 Since the demand is not sustainable on l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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