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TMI Blog2023 (12) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin five years from the relevant date under the circumstances mentioned in the proviso, one of which was suppression of facts. It is in this context that the Supreme Court observed that since suppression of facts has been used in the company of strong words such as fraud, collusion, or wilful default, suppression of facts must be deliberate and with an intent to escape payment of duty. Mere suppression of facts is not enough and there must be a deliberate and wilful attempt on the part of the assessee to evade payment of duty. In the absence of any intention to evade payment of service tax, which intention should be evident from the materials on record or from the conduct of the assessee, the extended period of limitation cannot be invoked. Thus, mere non disclosure of the receipts in the service tax return would not mean that there was an intent to evade payment of service tax. This issue was also examined at length by this Bench in M/s G.D. Goenka Private Limited vs. The Commissioner of Central Goods and Service Tax, Delhi South [ 2023 (8) TMI 995 - CESTAT NEW DELHI ] and after referring to the provisions of section 73 of the Finance Act, the Bench observed Suppressi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliance upon the following two decisions of this Tribunal :- (i) EIH Ltd. versus Commissioner of Central Excise, Delhi I [2019 (24) G.S.T.L. 592 (Tri. Del.)] ; (ii) Commissioner of Service Tax, New Delhi versus Air Charter Services P. Ltd. [2017 (5) G.S.T.L. 107 (Tri. Del.)] 5. Shri S.K. Meena, learned authorized representative appearing for the department has, however, supported the impugned order and submitted that it does not call for any interference in this appeal. 6. The submissions advanced by learned consultant for the appellant and the learned authorized representative appearing for the department have been considered. 7. The sole contention that has been advanced by the learned consultant for the appellant is that the extended period of limitation could not have been invoked. The show cause notice alleges that as the appellant had intentionally and willfully suppressed facts regarding providing taxable services and did not file the ST-3 returns, it appeared that the appellant had intentionally evaded payment of service tax and the facts would not have come to the notice of the department if the investigation not been conducted. 8. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by any person chargeable with the duty, the Central Excise Officer shall, within five years from the relevant dated, serve notice on such person requiring him to show cause why he should not pay the amount specified in the notice along with interest payable thereon under Section 11AA and a penalty equivalent to the duty specified in the notice. 14. In Pushpam Pharmaceuticals Company , the Supreme Court examined whether the Department was justified in initiating proceedings for short levy after the expiry of the normal period of six months by invoking the proviso to section 11A of the Excise Act. The proviso to section 11A of the Excise Act carved out an exception to the provisions that permitted the Department to reopen proceedings if the levy was short within six months of the relevant date and permitted the Authority to exercise this power within five years from the relevant date under the circumstances mentioned in the proviso, one of which was suppression of facts. It is in this context that the Supreme Court observed that since suppression of facts has been used in the company of strong words such as fraud, collusion, or wilful default, suppression of facts must be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) SCC 462], we find that suppression of facts can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty. When facts were known to both the parties, the omission by one to do what he might have done not that he must have done would not render it suppression. It is settled law that mere failure to declare does not amount to willful suppression. There must be some positive act from the side of the assessee to find willful suppression. Therefore, in view of our findings made herein above that there was no deliberate intention on the part of the appellant not to disclose the correct information or to evade payment of duty, it was not open to the Central Excise Officer to proceed to recover duties in the manner indicated in proviso to Section 11A of the Act. (emphasis supplied) 16. These two decisions in Pushpam Pharmaceuticals and Anand Nishikawa Company Ltd. were followed by the Supreme Court in the subsequent decision in Uniworth Textile Limited vs. Commissioner of Central Excise, Raipur [2013 (288) E.L.T. 161 (SC)] and the observation are: 18. We are in complete agreement with the principal enunciated in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o avoid tax by suppression of mention facts. In fact it is clear that the Appellant did not have any such intention and was acting under a bonafide belief. (emphasis supplied) 19. Very recently the Delhi High Court in Mahanagar Telephone Nigam Ltd. vs. Union of India and others [W.P. (C) 7542 of 2018 decided on 06.04.2023] , also observed as follows: 28. In terms of the proviso to Section 73(1) of the Act, the extended period of limitation is applicable only in cases where service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, or collusion, or wilful misstatement, or suppression of facts, or contravention of any provisions of the Act or the Rules made thereunder with an intent to evade payment of service tax. However, the impugned show cause notice does not contain any allegation of fraud, collusion, or wilful misstatement on the part of MTNL. The impugned show cause notice alleges that the extended period of limitation is applicable as MTNL had suppressed the material facts and had contravened the provisions of the Act with an intent to evade service tax. Thus, the main question to be addresse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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