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TMI Blog2025 (4) TMI 1393X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. The department had not conducted any audit or survey or search and found out new or additional information other than what is already available with them in the Form ST3 returns and the Income Tax returns. He further submits that in such scenario, the department should have issued the SCN well within the statutorily fixed time limit of 18 months from the 'relevant date'. But the SCN was issued on 24.09.2020 with an inordinate delay of 4 years for FY 2014-15, 3 years for FY 2015-16 and 2 years for the FY 2016-17. The following table clearly shows the dates of filing ST3 returns and Income Tax returns and due dates for issuing the SCN and the delay. Financial Year ST3 returns filed on ITR filed on Due date of 18 months Delay in issuing SCN 2014-15 25.10.2014 & 03.04.2015 20.09.2015 October, 2016 04 years 2015-16 12.10.2015 & 22.04.2016 22.07.2016 October, 2017 03 years 2016-17 17.10.2016 & 22.04.2017 11.08.2017 October, 2018 02 years 4. He further submits that as per section 73(6) of the Finance Act, the due date for issuing SCN for FY 2016-17 is October, 2018 and for FY 201516 is October, 2017 and for FY 2014-15 is October, 2016, whereas, it was iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted till date. 7. Learned AR relied on the following case laws in support of his contention. a) ICICI Econet Internet & Technology Fund Vs CCE, Bangalore [2021 (51) GSTL 36 (Tri-Bang)] b) Kopran Ltd Vs CCE, Raigad [2011 (23) STR 627 (Tri-Mumbai)] c) Prathyusha Associates Shipping (P) Ltd Vs CCE, Visakhapatnam-I [2014 (36) STR 1145 (Tri-Bang)] d) Lakhan Singh & Co Vs CCE, Jaipur [2016 (46) STR 297 (Tri-Del)] e) Nizam Sugar Factory Ltd Vs CCE [1987 (27) ELT 40 (AP)] f) Bharti Cellular Ltd Vs CCE, Delhi [2006 (3) STR 423 (Tri-Del)] g) CCE, Surat-I Vs Neminath Fabrics Pvt Ltd [2010 (256) ELT 369 (Guj)] 8. In view of the foregoing, learned AR submits that the demand is not barred by limitation as the appellant has suppressed the information about turnover/income in their statutory ST3 returns. Further, they have not furnished the relevant information, even after being requested to furnish the same to the department. 9. He further argued that the Adjudicating Authority has duly considered the submissions made by the appellant and allowed the deduction of salary income, defence pension and interest income from the gross income and rejected the appellant's claim of acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules made under this Chapter, a periodical return,showing particulars of service tax paid during the period to which the said return relates, is to be filed by an assessee, the date on which such return is so filed; (b) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (c) in any other case, the date on which the service tax is to be paid under this Chapter or the rules made thereunder;" 13. The appellant had declared the actual income in their Income Tax returns and less income in their statutory ST3 returns under Service Tax. This short declaration of income clearly shows that appellant wants to evade payment of service tax on the portion of income, which they short declared in the ST3 returns. Learned AR submits that even if the appellant had considered the services rendered by them as exempt, they should have declared the impugned income as exempted turnover in their ST3 returns. Unless the correct income/taxable values are declared in the ST3 return, the department has no way of knowing about the provisions of services or receipt of taxable consideration by the appellant. Declaration of income in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11-A the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equated with a willful misstatement. The latter implies making of an incorrect statement with the knowledge that the statement was not correct. Whereas, in the present case, the appellant intentionally and wilfully avoided to disclose the actual income for evading tax liability and therefore, this case law is also not applicable to the present case. 17. In the case of Bharath Hotels Ltd Vs CCE (Adjn) (supra) and Mahanagar Telephone Nigam Ltd Vs UOI & Ors (supra) also the factual matrix is different and therefore, not applicable. 18. In respect of reliance placed by learned AR on the various case laws, I find that in the case of ICICI Econet Internet & Technology Fund Vs CCE, Bangalore (supra), the Division Bench of this Tribunal at Bangalore held as under: "46. We find that the appellants have argued that this is a matter of interpretation and all the information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce cargo handling service did not include cargo handling of export goods, it would not be taxable and therefore cannot be considered as an exempted service. When the statute is clear and there is no ambiguity, no citizen has the liberty or luxury of assuming and acing on his assumptions without looking into the law and without any verification whatsoever. More so, in matters like service tax where the responsibility of assessment is on the assessee and not on the department. Such being the position, no one has the liberty to make assumptions about the liability. The law requires a person to read it, understand it and implement it. Failing to do so and assuming the provisions which are non-existing would lead to consequence which the assessee has no option but to take. Therefore, we are unable to consider the submissions regarding bona fide belief or non-applicability of extended period for confirming the demand arising as a result of the activity of the appellant." 21. In the case of Lakhan Singh & Co Vs CCE, Jaipur, the Larger Bench of this Tribunal held as under: "7.5 The sentence underlined in the extracts of the case of Chemphar Drugs (Supra) and similar observations in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and M/s. Ultra Flax (P) Ltd. v. CCE, Faridabad [2004 (167) E.L.T. 354 (Tri. -Del.)] referred by the Counsel, is not attracted to the facts of the present case. Those cases were under the Central Excise Act and there was material on the record to suggest therein that there was no suppression of the facts by the assessee from the department. But such is not the position in this case." 23. In the case of section 73 of the Finance Act, the words 'suppression' is not preceded by wilful. It is clear that the word 'suppression of facts' has not been qualified with the word 'wilful'. In other words, mere suppression of facts is enough to invoke the extended period under the Service Tax law and impose penalty under section 78 of the Act. Hon'ble Andhra Pradesh High Court in the case of Nizam Sugar Factory Ltd Vs CUE (supra), has held that 'mensrea' is not an essential ingredient for imposing penalty. 24. Therefore, in view of the factual matrix of the case and the cited case laws, the department has rightly invoked the extended period of limitation. Accordingly, the appeal filed by appellant is liable to be dismissed. 25. The impugned order is upheld and the appeal filed by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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