| | | |
| Extended period
cannot be invoked in
matters involving
Interpretation of
Statute | International Merchandising
Company v. Commissioner,
Service Tax [2022] 145
taxmann.com 247 (SC) (01-
11-2022) | The appellant placed reliance on the decision in Padmini Products v. CCE 1989 taxmann.com 629 (SC) to submit that the extended period
of limitation would not be attracted as the appellant has not acted with dishonest or fraudulent intent.
The Court observed that the Tribunal had specifically observed that the present case involved interpretation of statutory provisions. Therefore,
Tribunal having concluded that the issue turned upon an interpretation of the provisions of Section 65(68) and Section 65(86b) of the Finance
Act 1994, there was no warrant to allow invocation of extended period of limitation and to direct determination of the penalty following the requantification of demand. The extended period of limitation would clearly not stand attracted in respect of the first SCN dated 20 October 2009.
Thus, the demand was confined to the normal period of limitation excluding the extended period |
| No penalty wherein
tax paid before the
issue of the SCN | Cades Digitech (P.) Ltd. v.
Commissioner of Central
Tax [2022] 140 taxmann.com
189 (Bangalore-CESTAT) (04-
01-2022) | Appellant submitted that the demand and duty has been paid before the issue of SCN and as such no penalty can be imposed. However,
AR for the Revenue disputed the payment of interest thereof.
The Tribunal was of the considered opinion that in order to verify the competing claims of the appellant and the Revenue, the matter was to
go back to the original authority for verifying the records and arrive at the actual duty and interest payable. However, no penalties can be
imposed at this count. |
| Extended period
cannot be invoked
since department had
conducted audit of the
taxpayer in 2012 and
had knowledge about
the activities of
taxpayer since then. | Abhishek Alcobev (P.) Ltd. v.
Central Excise
Commissionerate, Noida
[2022] 139 taxmann.com 1
(Allahabad - CESTAT) (23-02-
2022) | On the aspect of invoking extended period of 5 years by the department instead of normal period of 18 months while issuing the SCN, Tribunal
held that extended period can be invoked by the department only when there was element of fraud or collusion or there was wilful intention for
evading the payment of service tax or there was suppression of relevant facts resulting into the evasion of duty. In the present case, it was
observed that department had conducted the appellants audit in August 2012 also. Hence, department had the knowledge about the activities
of the appellant. There was no denial that the appellant had been filing its Service Tax returns regularly. Appellant had been registered with
Service Tax department. Department had the option to and had assessability to entire information about receiving disputed amount of interest
by appellant since 2009.
Tribunal held that suppression of facts cannot be alleged. The fact being in the knowledge of the department since august 2012, no question
of invoking the extended period at all arise. With respect to the taxable service being provided by the appellant there was no denial for discharge
of liability of service tax. Hence there was never any intentional evasion on part of the appellant. It became crystal clear that there was neither
a wilful mis-declaration nor wilful suppression. The extended period therefore was wrongly invoked and SCN was held to be barred by time.
Cases Referred- Padmini Products v. Collector of Central Excise followed in Anand Nishikawa Co Ltd. v. CCE [2005] 2 STT 226 (SC) |
| Mere non-payment of
duties is not
equivalent to collusion
or willful misstatement
or suppression of
facts | C.C.,C.E. & S.T. Bangalore v.
Northern Operating Systems
(P.) Ltd. [2022] 138
taxmann.com 359 (SC) (19-
05-2022) | The Court observed that CESTAT relied upon two of its previous orders in giving the order in favour of the assessee and in the present case,
the revenue itself discharged the later two SCN. Thus, it evidenced that view held by assessee about its liability was neither untenable, nor mala
fide. This was sufficient to turn down revenue's contention about existence of "wilful suppression" of facts, or deliberate misstatement.
The Court held that SCN was unjustified and unreasonable on the aspect of invocation of extended period of limitation and although the
assessee was held liable to discharge its service tax liability but only for the normal period or periods, covered by the four SCNs issued to it.
Cases Referred- Cosmic Dye Chemical v. CCE 1995 taxmann.com 926 (SC), Uniworth Textiles v. CCE [2013] 31 taxmann.com 67, Escorts
Ltd. v. CCE [2015] 58 taxmann.com 125, Commissioner of Customs v. Magus Metals [2017] 16 SCC 491 |
| Extended period
cannot be invoked
since taxpayer sought
clarification and
instead of clarifying,
investigation
commenced for
suppression of facts | Karnataka Co-operative Milk
Producers Federation Ltd. v.
Commissioner of Central
Excise [2022] 138
taxmann.com 486 (BangaloreCESTAT) (22-02-2022 | The appellant argued that the SCN was time barred.
The Tribunal observed that the appellants had proactively informed the department in 2004 itself about their activities and sought clarification
on the excisability to service tax. The department instead of giving clarification have decided to investigate the matter after two years and
issued show-cause notice after further two years. In place of invoking extended period in cases of suppression of fact with an intent to evade
payment of duty or tax, tribunal observed that department chose to invoke extended period in a case where the appellant has proactively
informed the department about their activities and sought clarification. The Tribunal thus held that Revenue had no case to invoke the
extended period to issue show-cause notice. Therefore, the impugned order was held not to survive on limitation |
| Extended Period
cannot be invoked as
no suppression of
facts when proper
Books maintained and
returns filed regularly. | State Bank of Patiala v.
Commissioner, Central
Excise & Central Goods &
Services Tax [2021] 129
taxmann.com 167 (New Delhi -
CESTAT) (09-08-2021) | It was argued that proper books of accounts and statutory registers were maintained, and returns were filed with Department regularly. There
was no allegation in SCN that the appellant had not filed return properly and/or there is any suppression of facts or mis-statement in the returns.
Tribunal held that the SCN had been issued after more than 32 months from the last date when the return was due from the financial year
ending 31-3-2010. Accordingly, SCN was bad for invoking the extended period of limitation. There was no suppression of facts or contumacious
conduct on the part of the appellant |
