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TMI Blog2023 (12) TMI 1211X X X X Extracts X X X X X X X X Extracts X X X X ..... een held in a series of judicial pronouncements that since the words suppression is used along with words, such as, fraud, collusion and willful statement mere omission cannot be called suppression and intent has to be established. It has now well settled position of law. The two SCNs merely state that the appellant had not disclosed the value of the taxable services which it had rendered correctly in its ST-3 returns and, therefore, presume that the appellant had an intention to evade payment of service tax. There is not an iota of evidence in either of the SCN of this intent - Both the SCNs further state that had the audit not conducted scrutiny of the records, the short paying the service tax would not have come to notice. It is a matter of fact that all the details were available in the records of the appellant. The appellant was required to furnish returns under section 70 with the Superintendent of Central Excise which it did. It is for the Superintendent to scrutinize the returns and ascertain if the service tax had been paid correctly or not. If the assessee either does not make the returns under section 70 or having made a return, fails to assess the tax in accordance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act the Act , 1994 along with interest under section 75 and imposed penalties under section 77 and 78. 2. The appellants are registered with service tax and provide some taxable services namely Cargo Handling Services, Work Contract Service, Supply of Tangible Goods Service, Mining of Mineral Oil or Gas Service, etc. During the course of audit and scrutiny of the records of the assessee, it was noticed that it had provided mining services to two of its clients namely M/s Hi-Tech Rock, Chennai and M/s Madhucon Projects Limited, Hyderabad and had not paid service tax on these taxable services. The Superintendent of the Central Excise sent letters and followed them up with reminders. The assessee asserted in its reply that it had not provided any Mining Service and under these contracts and it had only provided transportation service and since the freight for transportation did not exceed Rs. 1500/- per truck, it was exempted. Not agreeing with this assertion of the appellant, SCNs were issued which culminated in the impugned order. The contracts which the appellant had entered into with M/s Hi-Tech Rock and M/s Madhucon Projects Limited were examined in detail. 3. It showed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 Months from the relevant date 25.01.2014 Normal Period Second Show Cause Notice dated 16.10.2014 (period 2009-2010 to August 2013) covering Services provided to M/s Madhucon Projects, Hyderabad Financial Year Normal Period of Limitation as per Section 73 Whether notice issued within normal or extended period 01.04.2009 to 30.06.2009 One year from the relevant date 25.07.2009 Extended Period 01.07.2009 to 31.12.2009 One year from the relevant date 25.01.2010 Extended Period 01.01.2010 to 30.06.2010 One year from the relevant date 25.07.2010 Extended Period 01.07.2010 to 31.12.2010 One year from the relevant date 25.01.2011 Extended Period 01.01.2011 to 30.06.2011 One year from the relevant date 25.07.2011 Extended Period 01.07.2011 to 31.12.2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service it is exempted ; (7) the appellant is not a Goods Transport Agency and, therefore, although the appellant was carrying the goods it was not liable to pay service tax under Goods Transport Agency Service also for the reason that the amount charged was upto Rs. 1500/- per truck, which was exempted by Notification No. 25/2012-ST ; (8) even if it is held that the service tax is chargeable, cum-tax benefit may be given to the appellant ; (9) the appellant had not willfully suppressed any material fact from the department and, therefore, extended period of limitation could not have been invoked and part of the demand is time barred ; (10) the issue is one of interpretation of the provisions of the law and, therefore, extended period of limitation has wrongly been invoked ; (11) As the appellant had not contravened any provisions of law, no penalty should have been imposed. Even if penalty is held to be imposable, it may be waived as the appellant as it had reasonable cause for failure. 5. On behalf of the Revenue, learned authorized representative made the following submissions:- (1) the appellant‟s contention that it was manufacturing goods and, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EW DELHI 5 4. M/s Sadbhav Engineering Ltd. 2016 (2) TMI 873 CESTAT AHMEDABAD 6 5. M/s Aravali Construction Company Pvt. Ltd. 2016 (8) TMI 675 CESTAT, NEW DELHI 4 6. Hazaribagh Mining Engineering P. Ltd. 2017 (49) S.T.R. 289 (Tri. Kolkata) 6.1 7. M/s Teknomin Construction Ltd. 2017 (4) TMI 704 CESTAT NEW DELHI 9 9.2 8. Hind Metals Industries Pvt. Ltd. 2018 (10) G.S.T.L. 547 (Tri. Kolkata) 6 7 9. Hind Metals Industries Pvt. Ltd. 2018 (12) G.S.T.L. J216 (S.C.) 1 2 10. M/s Prahlad Rai Company 2017 (12) TMI 1380 CESTAT NEW DELHI 7, 8 10 11. Tuli Construction Company 2019 (25) G.S.T.L. 43 (Tri. Kolkata) 10 11 (3) For the post-negative list period the adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression. 8. We now proceed to examine the reasons given for invoking extended period of limitation in the two SCNs. In the SCN dated 12.05.2014, the following reasons were given for invoking extended period of limitation :- 5.1 Whereas the assessee has never disclosed the fact to the department that they were providing mining services to M/s Hi-Tech Rock Products and Aggregates Ltd., Chennai, but not discharged service tax liability on this account. It thus appears that the assessee had suppressed this fact from the department by not showing the taxable value of Rs. 7,04,23,098/- in ST-3 return for the relevant period with intend to evade the payment of service tax under Mining Service. The said evasion was only noticed during the course of thorough scrutiny of the records of the assessee by internal audit department. Had the audit not pointed out this fact, the assessee could ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If the assessee either does not make the returns under section 70 or having made a return, fails to assess the tax in accordance with the provisions of Chapter or Rules made thereunder, the Superintendent of Central Excise can make the best judgment assessment under section 72. For this purpose, he may require the assessee to produce such accounts, documents or other evidence, as he may deem necessary. Such being the legal position, if some tax has escaped assessment which came to light later during audit, all it shows is that the Superintendent of Central Excise with whom the returns were filed had either not scrutinized the returns or having scrutinized then found no error in self-assessment but the audit found so much later. Had the Superintendent scrutinized the returns calling for whatever accounts or records were required, a demand could have been raised within the normal period of limitation. The fact that the alleged short payment came to light only during audit does not prove the intent to evade payment of service tax by the appellant, but it only proves that the Range Superintendent had not done his job properly. For these reasons, we find that the demand for the extende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 65 of the Finance Act, 1994 were made inapplicable vide Clause (A) of Section 143 of the Finance Act, 2012 read with Notification No. 20/2012-ST dated 05.06.2012 and, accordingly, the provisions regarding category-wise applicability of service tax were not in force and are no longer valid. Therefore, demand of service tax of Rs. 6,62,371/- on the receipts of Rs. 53,58,984/- for the period from 01.07.2012 onwards is without invoking proper provisions and thereby liable to be dropped. In this regard, I find that first of all the category of services and definition of services are still valid and these are to be determined accordingly and as per show cause notice, the assessee has been asked to deposit the service tax under the head of mining service‟. Further, the demand of service tax has been made under the provisions of section 73 of the Finance Act 1994 which is the appropriate provision for demand of service tax. Thus, non-mentioning the provisions of negative list in the Show Cause Notice does not vitiate the demand of service tax which has not been paid by the assessee on the services which attract the levy of service tax . 14. From the above, it is evident th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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