Custom, Excise & Service Tax Tribunal
M/S Ifgl Refractories Ltd vs Commr. Of Central Excise & S. Tax, Bbsr I on 18 January, 2018
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
Ex.Appeal No.76924/17
Arising out of O/A No.01/ST/RKL-GST/2017 dated 30.08.2017 passed by Commr. (Appeals), GST, Central Excise & Customs, BBSR
M/s IFGL Refractories Ltd.
APPELLANT(S)
VERSUS
Commr. of Central Excise & S. Tax, BBSR I
RESPONDENT (S)
APPEARANCE Shri Hemant Jajodia, C.A. for the Appellant (s) Shri S. S. Chattopadhyay, Supdt. (A.R.) for the Revenue CORAM:
SHRI S. K. MOHANTY, HONBLE JUDICIAL MEMBER DATE OF HEARING/DATE OF DECISION : 18. 01. 2018 ORDER NO.FO/A/75098/2018 Per Shri S. K. Mohanty :
This Appeal is directed against the impugned Order-in-Appeal No.01/ST/RKL-GST/2017 dated 30.08.2017 passed by Commr. (Appeals), GST, Central Excise & Customs, Bhubaneswar.
2. Brief facts are that the appellant is engaged in the manufacture of refractory materials. During the disputed period, the appellant availed services of GTA and short paid service tax amount as recipient of service under Reverse Charge Mechanism. On scrutiny of records by the Service Tax Audit Team, it was observed that the appellant has short paid service tax amount of Rs.82,883/-. Accordingly, upon initiation of show-cause proceedings, the matter was adjudicated against the appellant in confirming the adjudged demand. The adjudication order was upheld by the ld.Commissioner (Appeals) vide the impugned order.
3. The ld.Consultant appearing for the appellant, at the outset, submits that the proceedings are barred by limitation of time, inasmuch as, the proviso under Section 73 of the Finance Act, 1994, has not been invoked for confirmation of the duty demand beyond the normal period of limitation. He further submits that the Department has not alleged suppression, mis-statement, fraud etc. on the part of the appellant to defraud the Government revenue. Thus, he submits that since the show-cause notice was issued beyond normal period of limitation, the same is barred by limitation of time and proceedings cannot be initiated for confirmation of the adjudged demand. To support such stand, the ld. Consultant has relied upon the judgement of the Honble Bombay High Court in the case of Commr. of Central Excise Vs. Shree Ram Steel Rolling Mills : 2008 (221) ELT 333 (Bom.).
4. On the other hand, the ld.DR appearing for the Revenue, reiterates the findings recorded in the impugned order.
5. Heard both sides and perused the records.
6. On perusal of the show-cause notice, I find that the Department has not specifically alleged regarding involvement of the appellant in the activities concerning fraud, suppression, mis-statement etc., with intent to evade payment of service tax. I also find that the show-cause has not invoked the proviso to Section 73 of the Act for confirmation of service tax demand. Therefore, the show-cause notice dated 08.08.2012, issued by the Department, proposing to recover service tax demand for the period 2007-08 is clearly barred by limitation of time. I find that in an identical situation, in context, with the Central Excise Statute, the Honble Bombay High Court in the case of Shree Ram Steel Rolling Mills (supra), held that merely invoking the provisions of Section 11A of the Central Excise Act, 1944, without invoking proviso would not extend the time. Since Section 11A ibid is parimeteria with Section 73 of the Finance Act, 1994, the above judgement delivered by the Honble Bombay High Court is squarely applicable for deciding the issue in the case of the appellant. The relevant paragraph of the said judgement is quoted herein below for convenience of reference :
3.?The question before us is whether the extended period could have been applied in the instant case. The extended period can be invoked only if the proviso was invoked. In the instant case, the show cause notice does not indicate that the proviso was invoked. The proviso requires that when the duty has not been paid, it must be by reason of fraud, collusion or wilful misstatement or suppression of facts in contravention of the rules with a view to evade the payment of duty. This fact was not stated in the show cause notice. In other words, the respondents had no notice of the same. Merely invoking the provisions of Section 11A without invoking the proviso would not extend the time. Considering the finding recorded by the Commissioner of Central Excise and also the Tribunal, in our opinion, the question of law as framed would not arise. Consequently, the appeal is dismissed.
7. In view of the above settled position of law, I do not find any merit in the impugned order in confirming the adjudged demand on the appellant. Therefore, the same is set aside and the appeal is allowed in favour of the appellant.
(Dictated and pronounced in the open Court) Sd/ (S. K. MOHANTY) MEMBER (JUDICIAL) mm 3 Ex.Appeal No.76924/17