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TMI Blog2023 (10) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... and in such an event, the onus entirely lies with the department to prove that in fact the notice can be issued by invoking the extended period of limitation. In the present case, the entire modus operandi adopted by the assessee-appellant of providing the mess facilities at IIT, Kanpur were known to the department through the exchange of various communication between both the sides. Further, the contents of the agreements, referred supra, were also known to the department well in advance. Since, no additional documents were relied upon by the department for confirmation of the adjudged demands beyond the normal period, we do not find any substance in the appeal filed by the Revenue that the show cause proceedings are not barred by limitation of time. The Hon ble Supreme Court, in the case of PUSHPAM PHARMACEUTICALS COMPANY VERSUS COLLECTOR OF C. EX., BOMBAY [ 1995 (3) TMI 100 - SUPREME COURT] have ruled that when the Revenue authorities were aware of the facts about the assessee s activities, then issuance of show cause notice should be confined to the normal period. The above referred judgement, though were delivered in context with Section 11A of the Central Excise Act, 1944, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed to use the mess facility by buying coupons. The responsibility of issuing coupons shall lie with the contractor. e. Rate for providing 3 meals per day per student was at the cost of Rs.52/- f. The rates so fixed are inclusive of all taxes (other than UPTT and UPDT, duties and levies imposed by the State/Central Govt. and Local Bodies as on the date of award of work. However, if any new tax is imposed, enhanced by the Govt. subsequent to the award of work, the shame shall be reimbursed along with UPTT/UPDT on production of proof of payment. (ii) Agreement dated 23.11.2009 (for the period December 2009 to March 2012) In the amended agreement dated 23.11.2009, the raw materials and other necessary items was to be provided by the institute free of cost. The contractor was assigned with the following task: a. Cooking and serving three meals. b. Facilitate procurement of raw material on behalf of the hostel. c. Coupon sales for extra items. d. The mess premises comprising cooking and dining facilities, furniture, food/raw material containers, appliances, utensils, electricity and water shall be provided by the institute free of cost. However, cleaning washing material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed in the adjudication order for the period 01.07.2012 to 31.03.2013, holding that the services provided by the assessee-appellant were exempted service in terms of Notification No.25/2012-ST dated 20.06.2012 read with CBEC Circular No.172/7/2013-ST dated 19.09.2013. 3. Not quantified Impugned order has modified the original order passed in respect of SCN dated 17.10.2013, with a direction to the original authority to calculate the service tax liability for the period 01.04.2012 to 30.06.2012 and accordingly to impose penalties under Section 76 and 77 ibid. 3. Revenue has assailed the impugned order inter alia, on the ground that the show cause proceedings are not barred by limitation of time; that payment of VAT by considering the transaction as sale would not absolve the assessee from payment of service tax on provision of taxable output service; that benefit provided under Notification dated 01.07.2012 read with Circular dated 19.09.2013 shall not be available to the assessee inasmuch as the exemption from payment of service tax is available only to the educational institution, providing the auxiliary education service and not to catering service provided by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been provided that in case of non-levy or non-payment or short-levy or short-payment of service tax, owing to the reason of fraud; or collusion; or wilful mis-statement; or suppression of facts; or contravention of any of the provisions of this Chapter-V ibid, or the Rules made thereunder, with an intent to evade payment of service tax, instead of the period of eighteen months, the show cause notice shall be issued within a period of five years from the relevant date. On reading of the said statutory provisions, it is amply clear that proposal for recovery of service tax in normal circumstances should be confined to eighteen months only; whereas, under exceptional circumstances, the said period can be extended upto a period of five years, subject to fulfilment of the conditions that the ingredients itemized in the proviso clause were satisfied. In other words, issuance of the notice within the normal period is the rule and invoking the extended period is the exception and in such an event, the onus entirely lies with the department to prove that in fact the notice can be issued by invoking the extended period of limitation. In the present case, the entire modus operandi adopte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he show cause notice. The relevant paragraphs in the said judgement are quoted below: "26. In Tata Iron & Steel Co. Ltd. v. Union of India & Ors. [1988 (35) E.L.T. 605 (S.C.)], this Court held that when the classification list continued to have been approved regularly by the department, it could not be said that the manufacturer was guilty of "suppression of facts". As noted herein earlier, we have also concluded that the classification lists supplied by the appellant were duly approved from time to time regularly by the Excise authorities and only in the year 1995, the department found that there was "suppression of facts" in the matter of post-forming manufacturing process of the products in question. Furthermore, in view of our discussion made herein earlier, that the department has had the opportunities to inspect the products of the appellant from time to time and, in fact, had inspected the products of the appellant. Classification lists supplied by the appellant were duly approved and in view of the admitted fact that the flow-chart of manufacturing process submitted to the Superintendent of Central Excise on 17-5-1990 clearly mentioned the fact of post-forming process on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgements, though were delivered in context with Section 11A of the Central Excise Act, 1944, but the ratio is squarely applicable to the case in hand, inasmuch as Section 11A ibid, is pari materia with the provisions of Section 73 ibid. Further, we also find that under identical situation, the Additional Commissioner of Service Tax, Mumbai vide Order dated 07.10.2013 had dropped the show cause proceedings initiated against the similarly placed assessee M/s Asha Caterers, who had provided the mess catering service to IIT, Kanpur, holding that the proceedings are entirely barred by limitation of time. Furthermore, we also find that the said order dated 07.10.2013 had not been appealed against by the Revenue, meaning thereby that the statutory interpretation placed in the said order has been accepted by the competent authorities in the department. Thus, under such circumstances, the department cannot adopt pick and choose method to confirm the service tax on one assessee and to drop the same in case of the other. The Hon'ble Supreme Court in the case Commissioner of Central Excise, Allahabad Vs. Surcoat Paints (P) Ltd., reported in 2008 (232) E.L.T. 4 (S.C) has held that once the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of catering services under any mid-day meals scheme, but such scope is extendable to the case of the appellant inasmuch as such phrase in the circular preceded with the phrase 'included'. The term 'includes' in the statutory definition is generally used to enlarge the meaning of the preceding words and it is by way of extension, and not with restriction. In this context, the law is well settled that the term 'includes' widens the scope of definition, which enhances the scope of the definition as it is inclusive in nature; and therefore, the definition cannot be taken as one of restrictive approach. 7.3 In view of the above, we do not find any infirmity in the impugned order insofar as it has allowed the appeal of the appellants in dropping the adjudged demands for the period from 01.07.2012 to 31.03.2013, by placing reliance on the notification dated 20.06.2012 (supra) and circular of CBEC dated 19.09.2013 (supra). Therefore, appeal filed by Revenue on this ground is also liable for dismissal and accordingly, we dismiss the same. 8. The learned Commissioner (Appeals) vide paragraph 11 in the impugned order has modified the adjudication order and remanded the matter to the lower a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Commissioner of C. Ex., Hyderabad Vs. Novapan Industries Ltd. - 2007 (209) E.L.T. 161 (S.C.) as follows : "12. The Tribunal in its order has relied upon its earlier judgment in ICI India Ltd. v. CCE, Hyderabad [2000 (91) ECR 152 (T)] in which the similar issue was involved and the Tribunal had taken the view that interest being inbuilt in the price which had not been charged separately, was deductible from the assessable value. The portion of the said judgment is extracted below: "…..The facts recorded by the Hon'ble Supreme Court clearly show therefore that interest element was inbuilt in the price and that this price with the interest element inbuilt was under consideration by the Apex Court. When these facts under consideration by the Hon'ble Apex Court are read with the final judgment in the recalled order as in 1995 (77) E.L.T. 433 (para-66) = 1995 (58) ECR 385 (SC), it is clear that it was held by the Hon'ble Apex Court that such a deduction was admissible under the Act. 9. We find that as against this the ld. Commissioner (Appeals) has recorded that this element when inbuilt in the price and claimed as a deduction to be in the nature of an abatement and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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