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TMI Blog2024 (2) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... n contractor. The facts involved in this case that there was an interpretation issue about the liability. The Supreme Court in the matter of THE COMMISSIONER, CENTRAL EXCISE AND CUSTOMS AND ANOTHER VERSUS M/S RELIANCE INDUSTRIES LTD. AND COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX VERSUS M/S RELIANCE INDUSTRIES LTD. [ 2023 (7) TMI 196 - SUPREME COURT] while dealing with the issue of suppression of facts, observed that if the appellant was under a bona fide belief based upon certain judgment then in such case the said bona fide belief cannot be stated to be a suppression of fact and Court held We note that the issue of valuation involved in this particular matter is indeed one were two plausible views could co-exist. In such cases of cases of disputes of interpretation of legal provisions, it would be totally unjustified to invoke the extended period of limitation by considering the assessee s view to be lacking bona fides. In any scheme of self-assessment it becomes the responsibility of the assessee to determine his liability of duty correctly. This determination is required to be made on the basis of his own judgment and in a bona fide manner. Since the interpretational issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has not shown or paid the service tax, therefore, since the liability to pay the service tax was on the respondent according to Section 71A and the circular issued by the Central Government the respondent was duty bound to show the payment of service tax or its entry in the return. (iv) The show cause notice dated 19-10-2012 was issued that for the financial year 2007-08, 2008-09, 2009-10 and 2010-11 and the trial balance sheet for the financial sheet for financial year 2011- 12 (up to December, 2011) the respondent as a sub-contractor received the payment from the main contractor but had not paid the service tax. Consequently, as per the circular dated 4-1-2008 issued by the Central Board of Excise and Customs the extended period of limitation was invoked. (v) The respondent replied to the said show cause notice stating that the main contractors had already made payment of service tax, therefore, they did not collect the service tax from the main contractor and the levy of tax was not justified. It was further stated that had there been payment of service tax there would have been double taxation and the work order also contains stipulation that the main contractor would bear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers Private Limited Service Tax Appeal No. 50399 of 2014 (decided on 23-5-2019) and the show cause notice which was issued in 2012 did not take care of this issue and the bona fide of the respondent can be shown by the fact that the main contractor had already paid the service tax, which the Commissioner has accepted, therefore, when the interpretation of law itself was in issue, non-disclosure of payment of service tax in ST-3 by the sub-contractor cannot be said to be deliberate, as otherwise it was a bona fide. Consequently, the proviso clause to Section 73 of the Act could not have been invoked. 5. We have heard learned counsel appearing for the parties and perused the documents. 6. Perusal of the order of the Commissioner would show that it is an admitted fact that copies of certificates certifying payment of Service Tax by the main contractor were placed on record, which are as under : Sl.No. Certificate No. & date Name of the party (main contractor) Work order No. 1 Ref. D/CE/MSS/09610 dated 10.01.2012 M/s Gannon Dunkerley & Co. Ltd., New Delhi D/CE/810/03899 Dtd 1.07.2006, D/CE/0919 Dtd 19.12.2007, D/CE/03568 Dtd 21.07.2008. 2 Ref. D/CE/MSS/004521 dated 11.01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, by the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as if, for the words "thirty months", the words "five years" had been substituted. xxx xxx xxx 9. It is also an admitted fact that in reply to the show cause notice the main defence raised by the respondent herein was that since the main contractor has already made payment of service tax, as such, the respondent did not collect service tax amount from the main contractor. It was stated that if the payment of service tax made by the respondent, the same would have resulted in double taxation. It was also stated that there was no suppression of fact with an intent to evade the payment of service tax. 10. It is an undisputed fact that the question about levy of service tax by the sub-contractor was subjected to adjudication in the matter of M/s Melange Developers Private Limited (supra), which was decided on 23-5-2019 by the larger Bench of the Tribunal, wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aluation involved in this particular matter is indeed one were two plausible views could co-exist. In such cases of cases of disputes of interpretation of legal provisions, it would be totally unjustified to invoke the extended period of limitation by considering the assessee's view to be lacking bona fides. In any scheme of self-assessment it becomes the responsibility of the assessee to determine his liability of duty correctly. This determination is required to be made on the basis of his own judgment and in a bona fide manner. 12. While interpreting Section 11A of the Act, 1944, which is pari materia to Section 73 of the Act, the Supreme Court in the matter of Continental Foundation Jt. Venture v Commissioner of Central Excise, Chandigarh-1 2007 (216) ELT 177 (SC) held thus at paras 9 & 10 : 9) We are not really concerned with the other issues as according to us on the challenge to the extended period of limitation ground alone the appellants are bound to succeed. Section 11A of the Act postulates suppression and, therefore, involves in essence mens rea. 10) The expression 'suppression" has been used in the proviso to Section 11A of the Act accompanied by ve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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