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TMI Blog2025 (1) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (1) of Section 11A and 11AC of Central Excise Act which are pari-materia to Section 73(1) and Section 78 of the Finance Act, 1994 use the expressions by reason of fraud, collusion or any willful mis-statement or suppression of facts or contravention of any of the provisions of this act or of the rules made thereunder with intent to evade the payment of duty as the conditions that would extend the normal period of one year to five years and as would also attract the imposition of penalty. The adjudicating authority below has justified the invocation of extended period holding that there is a suppression of facts on part of the appellant. Conscious and deliberate withholding of the information by manufacturer is necessary for invoking t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil work as required at site of M/s KTPS, Kota. 1.1 Further the appellant has submitted VAT returns which shows that the assessee has also paid VAT/sales tax on the above said work. The essential condition of work contract that transfer of property in goods must be involved in the execution of such contract is leviable to tax as sale of goods. This condition is being fulfilled here as such the service provided by the assessee was Work Contract Service and classified under erstwhile Section 65(105)(zzzza) of the Finance Act, 1994 and not the Commercial Construction Service . 1.2 It was observed that the gross value receipt of Work Contract Service during 2010-11 and 2011-12 by the appellant is Rs. 40.81 lakhs and Rs. 96.29 lakhs respectively ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel submitted that the said demand is barred by limitation. That the appellant did not have any mala-fide intention and there is nothing on record which proves that appellant had suppressed anything from the revenue. The transaction were duly recorded in the statutory records. The tax was paid immediately as pointed out by the audit. Thus extended period in given case should not be applicable. That further, in the remand proceedings also, no penalty was levied by the revenue as tax along with interest was paid (as per own ascertainment) before issuance of the SCN. Learned Chartered Accountant has relied upon the following decisions: - i. Jaiprakash Industries Ltd. v. Commissioner of Central Excise, Chandigarh [2002 (146) E.L.T. 481 (S.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith these submissions, the order is prayed to be upheld and appeal is prayed to be dismissed. 5. Having heard both the parties and perusing the records, we observe and hold as follows: 5.1 Since there remains no dispute vis- -vis services being rendered by the appellant to M/s. KTPS, the appellant is no more disputing their liability to pay service tax for rendering Works Contract Services. The department has accepted the appellant to be eligible for the benefits of Works Contract composition scheme and also for cum tax benefit. There remains no dispute vis- -vis the amount of demand of Rs.1,27,905/- to have been confirmed as short paid service tax against the appellant along with the interest. The only point of contention before us is whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posite works contracts the service elements should be bifurcated ascertained and then taxed. 5.4 It is further held that Section 65(105) of the Finance Act, 1994 had levied service tax only on contract s simplicitor and not on composite indivisible work contracts. There was no charging section specifically levying service tax only on Works Contract and measure of tax with service element derive from gross amount charged for Works Contract less value of property in goods transfered in execution of Works Contract. This decision had cullet out the prevalent confusion vis- -vis the services simplicitor and the composite services and the taxability thereof which prevailed during the period from June 2007 till the date of this decision i.e. 23.08 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement . As explained in Uniworth (supra), misstatement or suppression of facts does not mean any omission. It must be deliberate. In other words, there must be deliberate suppression of information for the purpose of evading of payment of duty. It connotes a positive act of the assessee to avoid paying excise duty. The terms mis-statement and suppression of facts are preceded by the expression willful . The meaning which has to be ascribed is, deliberate action (or omission) and the presence of an intention. Thus, invocation of the extended limitation period under the proviso to Section 73(1) does not refer to a scenario where there is a mere omission or more failure to pay duty or take out a license without the presence of such intention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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