9911796707
TMI Blog2025 (3) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... gh the detailed and chronological list of dates as well as the compilation of judgments which have been placed for our consideration. For the purposes of analysing the challenge which stands raised, we deem it apposite to take note of the following undisputed facts which emerge from the record. 4. The challenge to the impugned SCN of 17 October 2019 constituted the fifth of a series of SCNs which had been issued by the respondents holding the petitioner exigible to tax under the service tax regime that prevailed. The levy of service tax was asserted to stand attracted in respect of amounts expended by the petitioner for meeting operational costs of overseas offices as well as for payments received for arranging and operating outbound tour services. It was the case of the petitioner that the aforesaid services would not fall within the ken of Section 65 (105) (n) of the Act and that consequently, the amount so expended or received was exempt. 5. For purposes of clarity, Mr. Kunal has placed for our consideration the series of SCNs which appear to have been issued to the writ petitioner raising identical allegations. The details of those SCNs are extracted hereinbelow: SN. Period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is necessary for us to examine the provisions of Finance Act, 1994. The impugned taxable service is that 'provided or be provided' '(n) to any person, by a tour operator in relation to a tour;' in section 65 (105) of Finance Act 1994 with "'tour operator" means any person engaged in the business of planning, scheduling, organising or arranging tours (which may include arrangements for accommodation, sightseeing or other similar services) by anymore of transport, and includes any person engaged in the business of operating tours in a tourist vehicle or a contract carriage by whatever name called, covered by a permit granted under the Motor Vehicles Act, 1988 (59 of 1988) or the rules made there under.' in section 65 (115) of Finance Act, 1994. As far as the present dispute is concerned, the expansion in the definition effected from 16th May 2008 is not relevant. Furthermore, the definition of "'tour" means a journey from one place to another irrespective of the distance between such places;' in section 65 (113) of Finance Act, 1994 is also not germane. 14. The change in the statutory provision has added elements to the activity that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paying in convertible foreign currency as beyond the pale of exemption with the specious finding that customer was present in India when the service was rendered. Insofar as service taxable under section 65 (105) (n) of Finance Act, 1994 is concerned, it did not appear to have dawned on the adjudicating authority that Export of Service Rules, 2005 does not base the exemption on place of the customer. The assumption that payment, if any, was received in local currency from Indian tourists is also not evidenced by any details in the show cause notice or subsequent ascertainment in the impugned order which has, but for the tabular presentation of taxable value/tax and the final confirmation of demand, not referred to the service rendered or disaggregation of value of services ineligible to be considered as exports. 16. As the consideration claimed to have been received in pursuance of exports has not been controverted in the impugned order, neither the issue of liability of interest on demand that has not fructified nor the contention relating to inapplicability of the decision of the Tribunal in Cox & Kings India Ltd has to be decided upon in this appeal. 17. In view of our concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hird show-cause notices were issued in 1988. At all these stages, the necessary material was before the authorities. They had then taken the view that M/s Pharmachem Distributors was not a related person. If the authorities came to the conclusion subsequently that it was a related person, the same fact could not be treated as a suppression of fact on the part of the assessee so as to saddle it with the liability of duty for the larger period by invoking proviso to Section 11-A (1) of the Act. So far as the assessee is concerned, it has all along been contending that they were not related persons, so, it cannot be said to be guilty of not filling up the declaration in the prescribed pro forma indicating related persons. The necessary facts had been brought to the notice of the authorities at different intervals from 1985 to 1988 and further they had dropped the proceedings accepting that M/s Pharmachem Distributors was not a related person. It is, therefore, futile to contend that there has been suppression of fact in regard to M/s Pharmachem Distributors being a related person. On that score, we are unable to uphold the invoking of the proviso to Section 11-A(1) of the Act for maki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved with a second SCN by the Collector on 16-7-1987 alleging that the appellant was supplying carbon dioxide to another unit as per agreement dated 19-3-1983; that they had not taken necessary license; had not followed the procedure prescribed under the Rules; and had not discharged duty liability. The said SCN covered the period of Assessment Years 1982-1983 to 1986-1987. The appellant responded to the second SCN and took the plea that the SCN under consideration was practically a repetition of the allegations contained in the SCN dated 28-2-1984 and for the period April 1982 to September 1982 the Department had raised demands under two different SCNs. It was pointed out that carbon dioxide in the impure form was not marketable as it also contained carbon monoxide in lethal proportions. It was contended that they were under bona fide belief that since such impure carbon dioxide was not exigible to payment of duty, they were not required to file either classification list or the price list or take out license. It was submitted that resorting to extended period of limitation under Section 11-A(1) was not justified in the circumstances of the case. The appellant was served with the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sponses. We fail to appreciate how a mere lapse on the part of an assessee to respond to such notices could have qualified the criteria which underlies and constitutes the foundation for the application of the First Proviso to Section 73 (1). We so observe additionally in light of the undisputed position of the respondents being enabled by statute to either proceed ex parte or even frame a best judgment assessment in case an assessee were to fail to cooperate. 16. On a more fundamental plane, we take note of the following recitals which appear in the impugned SCN and which constituted the basis for the extended period having been invoked: "5. Whereas the party did not disclose to the Department while filing their ST-3 returns that they paid representative fee/retention fee to their overseas representatives for marketing and support services and not paid service tax on the said amount under RCM based on proper exemption notification/rules, thereby wilfully suppressing facts about non-payment of service tax with intent to evade payment of Service Tax. Further, during the course of audit, the assessee also failed to give plausible explanation for non-payment of service tax on ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
