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TMI Blog2024 (9) TMI 1083X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant. In this case the Appellant has filed returns regularly and disclosed all information to the department - the extended period of limitation is not invocable in this case. The CESTAT Delhi in M/S INTERNATIONAL AIR CHARTER VERSUS COMMISSIONER OF CENTRAL TAX (APPEALS II) , DELHI [ 2023 (12) TMI 1004 - CESTAT NEW DELHI] , allowed the appeal of the assessee on limitation, finding that mere suppression of facts, as alleged by the department, 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. The entire demand in the instant case is for the extended period - the show cause notice dated 23.04.2016 is barred by time, as extended period is not invokable in the facts and circumstances of the present appeal. The impugned order is set aside and the appeal is allowed. - HON BLE MS. BINU TAMTA , MEMBER ( JUDICIAL ) And HON BLE MS. HEMAMBIKA R. PRIYA , MEMBER ( TECHNICAL ) Shri R. S. Sharma , Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23.04.2016. The Ld. Counsel submitted that as the appellant had been filing his returns regularly, the demand was time-barred and the invocation of extended period does not arise. He further submitted that there was no suppression of facts with an intent to evade payment of Service tax. Hence the extended period for demand under proviso to Section 73(1) of the Finance Act, 1994 is not applicable and the demand is not sustainable on this ground alone. In support of his submission, Ld. Counsel relied upon the decision of the CESTAT, Principal Bench, New Delhi in case of M/s GD Goenka Private Limited Versus Commissioner CGST Delhi South vide Final Order No. 51088/2023 dated 21.8.2023. 3.2 Ld. Counsel for the appellant further submitted that the lower authorities had failed to appreciate the undisputed fact that the entire Service tax on construction service was paid in cash as per copies of challans showing tax payment under Accounting Code of Construction of Complex Service and no credit of input construction services was availed/utilized by the Appellant. He further submitted that no credit of input service of construction or any input service attributable to construction activity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid in tax and there is no demand of tax and claim of Abatement by the appellant has not been disputed. All the services on which credit was availed are covered within ambit and scope of definition of input service and have been used in providing output non-construction services as already submitted in the grounds of appeal and rulings relied upon in appeal and the credit has been correctly availed being eligible credit. 3.4 Ld. Counsel for the appellant submitted that since the demand of service tax itself is not sustainable so, the demand of interest is also not justified. The imposition of penalty does not arise in the present case as it is not a case of non-payment or evasion of duty by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of the Finance Act, 1994 with intent to evade or of the rules made thereunder with intent to evade payment of duty. Hence the penal provisions under Rule 15(3) and Section 78 and Section 77 are not applicable on facts and circumstances of the case. 4. Learned Authorized Representative for the Department reiterated the findings in the impugned order and submitted that abatem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er abatement or CENVAT Credit, not both. Notification conditions must be construed strictly and no CENVAT Credit is admissible if abatement benefit is claimed. The appellant claimed that input services used were for Preferential Location and Development of Complex Service, not for construction services. In support of his submission, Ld. AR relied upon the decision of M/s Welcome Hotel Vadodara vs. CCE ST- Vadodara-I reported as 2019 (5) TMI 1410-CESTAT Ahmedabad wherein it was held by the Tribunal that the appellant's claim is that these services are in the nature of common input services and have a direct or indirect nexus with all the activities undertaken by the hotel, however, the appellant's claim that they have not availed credit for Input services used in the provision of Mandap Keeping Services is not upheld, as there is no merit in this claim. 4.2 Ld. AR further submitted that the demand for wrongly availed CENVAT Credit for 2010-2013 is rightly upheld and interest is recoverable under Section 75 of the Finance Act, 1994, for wrongly utilized CENVAT Credit. Penalty under Section 78 is justified due to suppression of facts with intent to evade Service Tax. 5. We hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the CBEC, took such risk and the loss of Revenue is a result of the policy. 25. To sum up : a) The appellant assessee was required to file the ST 3 Returns which it did. Unless the Central Excise officer calls for documents, etc., it is not required to provide them or disclose anything else. b) It is the responsibility of the Central Excise Officer with whom the Returns are filed to scrutinise them and if necessary, make the best judgment assessment under section 72 and issue SCN under Section 73 within the time limit. If the officer does not do so, and any tax escapes assessment, the responsibility for it rests on the officer. c) Although the Central Excise Officer is empowered to scrutinise all the Returns call for records and if necessary, make the best judgment assessment, if, ST/51787/2022 as per the instructions of CBIC, the officer does not conduct a detailed scrutiny of same Returns and as a result is unable to discover any short payment of tax within the period of limitation, neither the assessee nor the officer is responsible for such loss of revenue. Such a loss of Revenue is the risk taken by the Board as a matter of policy. d) Extended period of limitation cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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