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TMI Blog2024 (11) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... ical Vs. Collector of Central Excise, Bombay[ 1994 (9) TMI 86 - SUPREME COURT] wherein it has been held that there can be no suppression or mis-statement of fact for the purposes of invoking extended period of limitation, if the same is not willful. From the record it is observed that except the verbal allegations for the reason that the tax was not paid prior the investigation got conducted by the Department. Proof of conscious and deliberate withholding of the information is necessary to involve the extended period of limitation. There is no evidence to prove the alleged suppression. Otherwise also appellant admittedly being a Government authority there seems no reason with the appellants to evade the tax causing loss to the Government Exchequer nor any reason to withhold the information consciously. Penalty imposed - In the present case, the moment appellant was informed about its liability vide letter dated 17.03.2020, the entire amount demanded was paid by the appellant in three installments dated 30.05.2020, 06.06.2020 and 29,06,2021 on 29.06.2021. it is a meager amount of Rs.14,332/- out of Rs.1,12,18,568/- as was not paid by the appellant. In view thereof, hold that the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax liability. The Department gathered an intelligence that the appellants have been paying Guarantee Fee to Madhya Pradesh Government in view of the guarantee extended by the Government on behalf of the appellant/ borrower of the loans from the Banks and financial institutes. It is observed that for the amount of Guarantee Fee paid by the appellant during the period from 01.04.2016 to 30.06.2017 the appellant is liable to pay service tax amounting to Rs.12,18,569/- alongwith the interest amount of Rs.56,93,134/-. Proposing the said demand that a Show Cause Notice bearing No.38/2020 dated 3rd June 2021 was served upon the appellants. Department had invoked the extended period while issuing the said Show Cause Notice on the ground that the liability of the appellant had came to notice of the Department only pursuant to the investigation, appellant kept suppressed his liability till then. Imposition of penalty has also been proposed for the aforesaid alleged suppression on part of the appellant. The said proposal was confirmed vide the Order-in-Original No.04/2021-22 dated 3rd December, 2021. Appeal against the said order has been rejected vide Order in Appeal No.133/2022-23 dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 314 (Kar.) 4. M/s. LMT (India) Pvt. Ltd. vs. Commissioner of GST Central Excise -2023 (10) TMI 386 CESTAT- Chennai. 5. YCH Logistics (India) Pvt. Ltd. Vs. CCE CST, Bangalore ST-I reported in 2020 (3) TMI 809 CESTAT Bangalore 4. Ld. Counsel has, while acknowledging their liability towards the impugned amount under reverse charge mechanism, have prayed for setting aside the order imposing penalty upon the appellant and the findings confirming the allegations of suppression on part of the appellant. The order under challenge is prayed to be set aside to the settled extent and the appeal is prayed to be allowed. 5. While rebutting these submissions ld. D.R. has mentioned that section 73 (3) of Finance Act, as impressed upon by the appellant is not applicable in the present set of circumstances, as present is the clear case of suppression of liability of the appellant, which could not have been unearthed except during the investigation conducted by the Department pursuant to the intelligence gathered about appellant s intention to evade duty. In the given circumstances and in view of sub-section 4 of section 73 of the Act benefit of section 73 (3) of the Act cannot be extended in favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay that there can be a suppression or mis-statement of fact, which is not wilful and yet constitutes a permissible ground for the purpose of the proviso to Section 11A Misstatement of suppression of fact must be willful. 8. In the case of CCE vs. Chempher Drugs Liniments reported as 1989 (40) ELT SC, Hon ble Court has held that the burden is upon the Revenue to prove the positive act on part of the appellant that there was a malafide intent to not to pay the service tax. From the record it is observed that except the verbal allegations for the reason that the tax was not paid prior the investigation got conducted by the Department. Proof of conscious and deliberate withholding of the information is necessary to involve the extended period of limitation. There is no evidence to prove the alleged suppression. Otherwise also appellant admittedly being a Government authority there seems no reason with the appellants to evade the tax causing loss to the Government Exchequer nor any reason to withhold the information consciously. 9. I also observe that Department s own circular No.1053/02/2017 dated 10.03.2017 lays down the essential criteria for issuance of Show Cause Notice vis- -vis i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reason of fraud, collusion etc. As already observed above, the appellant being a State owned company cannot have the malafide intent and that the department has not produced any other evidence except the oral allegations that the appellant has suppressed the relevant facts with a willful intent to not to pay the Service Tax. Hence, it is held that penalty has wrongly been imposed upon the appellant. This Tribunal in the case of YCH Logistics India Pvt. Ltd. (supra), as relied upon by the appellant has categorically held as follows:- 5. In the present case, we find that the contention of the appellant that they bona fidely believed that they are not liable to pay service tax but when the audit party raised the objection that they are liable nay service tax then they immediately paid the service tax along with interest which is admitted in the impugned order, is justified. Further except mere allegation of suppression, the Department did not bring any material to prove that there was suppression and concealment of facts to evade payment of tax. Consequently, in our considered view, the imposition of penalty under Section 77 78 is not justified and bad in law. Hence, we set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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