Custom, Excise & Service Tax Tribunal
Oriental Insurance Company Ltd vs Ltu Delhi on 25 May, 2021
Author: Dilip Gupta
Bench: Dilip Gupta
1 ST/53059/16
CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL
NEW DELHI
PRINCIPAL BENCH
SERVICE TAX APPEAL NO. 53059 OF 2016
(Arising out of Order-in-Original No. Commissioner/LTU(Audit)/03/2016 dated 07
September, 2016 passed by the Commissioner, LTU (Audit), New Delhi)
M/s Oriental Insurance ......Appellant
Company Limited
25-27, Asaf Ali Road
New Delhi - 110 002
VERSUS
Commissioner, LTU, ......Respondent
New Delhi
APPEARANCE:
Shri Narender Singhvi, Advocate, for the Appellant
Shri Radhey Tallo, Authorised Representative of the Respondent
CORAM : HON‟BLE MR. JUSTICE DILIP GUPTA, PRESIDENT
HON‟BLE MR. P.V. SUBBA RAO, MEMBER (TECHNICAL)
FINAL ORDER NO. 51517/2021
Date of Hearing: March 11, 2021
Date of Decision: May 25, 2021
JUSTICE DILIP GUPTA :
M/s Oriental Insurance Company Limited1 has filed this
appeal to assail the order dated September 07, 2016 passed by the
Commissioner LTU (Audit), Delhi2, by which the demand of service
tax of Rs. 28,69,74,247/- has been confirmed and appropriated.
1. the appellant
2. the Commissioner
2 ST/51761/16
An order for recovery of interest under section 75 of the Finance
Act, 19943 has also been passed and penalty has been imposed
under the first proviso to section 78 of the Finance Act.
2. The period of dispute in the present appeal is from April
2009 to March 2014 and the issue is the point of time when liability
to pay service tax on re-insurance services provided under the pool
agreement arises. It is for this reason that the only dispute in this
appeal is about the liability to pay interest.
3. The appellant is a registered insurer under the provisions of
the Insurance Act, 19384 and is engaged in providing general
insurance services. The appellant is also registered with the Service
Tax Department.
4. A recently developed form of insurance is terrorism
insurance. Terrorism insurance is an insurance purchased by
property owners to cover their potential losses and liabilities that
may occur due to terrorist activities. It is considered to be a
difficult product for insurance companies, as the odds of terrorist
attacks are very difficult to predict, and the potential liability is
enormous.
5. After the withdrawal of insurance and reinsurance capacity
for terrorism risk in the international market post 9/11, all the non-
life insurers in India along with the General Insurance Corporation
of India5 formed the ‗Indian Market Terrorism Risk Insurance Pool'6
3. the Finance Act
4. the Insurance Act
5. GIC
6. Insurance Pool
3 ST/51761/16
in April, 2002 to cover property damage and consequential loss
arising out of any terror strike.
6. The Insurance Pool is administered by the GIC and it
enables non-life insurance companies to provide insurance cover
against terrorism risk in India on the combined underwriting
capacity of the members and the GIC.
7. Under the Insurance Pool, a member company can issue
insurance policies to insure properties against terrorism risk. After
retaining a specified percentage, the whole of the premium
collected from the terrorism insurance policies is required to be
ceded to the pool. Thereafter, in proportion to the capacity of each
member, the GIC (the pool administrator), decides the inward
premium to be ceded by one member company to the other
member companies. In other words, to the extent of individual
inward premium, one member company acts as a reinsurer to the
other member companies. The share of each member is
determined on the basis of its proportion to the total premium
received in the Insurance Pool.
8. Apart from the inward premium in respect of reinsurance
provided by each member to other members, the GIC also takes
excess of loss cover so as to protect the members from any excess
of loss arising from risks. This is also apportioned amongst the
members in the same manner as inward premium. Over and above
the inward premium and excess of loss premium, the GIC also
obtains excess of loss insurance cover from foreign insurance
companies.
4 ST/51761/16
9. Thus, each member company provides reinsurance service
to other member companies, for which it receives inward premium
and excess of loss cover premium (domestic). The foreign
reinsurers provide re-insurance services to member companies, for
which they are paid excess of loss cover premium (foreign). The
above premiums are adjusted on the basis of settlement of
accounts resulting in booking adjustment premiums in a year in
respect of adjustments pertaining to the last financial year. This
premium is, thus, nothing but a part and parcel of the reinsurance
services provided/ received.
10. In terms of Clause 17 of the Insurance Pool Agreement, GIC
used to send quarterly statements to member companies,
containing details of the total premium received by the pool along
with details of service charges, claims paid, excess of loss cover
premium, other charges, etc. and the net premium due to
members. Further, the percentage of each member was
determined on the basis of its premium ceded to the pool. The net
premium is apportioned amongst the members in proportion to
their percentage in capacity of the pool. While this amount
represented the total amount as inward premium / excess of loss
cover premium etc. to be received by one member Company from
the other member companies, it was not known from the quarterly
statements as to what was the share/ amount to be received by
one member company from another individual member company.
11. This amount, according to the appellant, is actually known
only on receipt of detailed matrix for each financial year from the
5 ST/51761/16
GIC, wherein the actual amount to be received as premium by one-
member company from other member companies in respect of
reinsurance provided under the pool was provided. The sending of
matrix for determining the share of each member qua other
member was a practice developed by the GIC. These matrixes were
not contemplated under the Pool Agreement and were agreed
between the members as a matter of practice of working of the
pool.
12. It is stated that as it was only from the matrixes that the
individual premiums from each company was known, the member
companies deposited the service tax after receipt of the matrix, in
respect of such reinsurance services rendered by them to the other
member companies as well as liability under reverse charge in
respect of excess of loss cover premium payable to foreign
reinsurers.
13. A show cause notice was, however, issued to the appellant
alleging that there was a delay in payment of service tax by the
appellant as it paid service tax after receipt of matrixes from GIC.
The extended period of limitation, as contemplated under the first
proviso to section 73(1) of the Finance Act was also invoked.
14. The appellant filed a detailed reply to the show cause notice.
15. The Commissioner passed an order dated September 07,
2017 for recovery of interest and imposition of penalty after
rejecting the plea of the appellant that the extended period of
limitation could not have been invoked.
6 ST/51761/16
16. The findings of the Commissioner in regard to the invocation
of the extended period of limitation are as follows:
―29.1 In this regard, I find that the noticee has failed
to disclose the facts of receiving various premiums such as
inward premium, OIL premium and Adjustment premium, in
their periodical returns filed with the department. It
appears that they started the process of identifying their Service
tax liability only after thematic audit of the records of the GIC Re
in the year 2013 by CERA. In fact, they have paid most of the
applicable amount of Service Tax on their own, before the
issue of show cause notice in the instant case. In other
words, they were aware of their liability for the extended
period and accordingly paid their due Service Tax on their
own. It may be that they have no malafide intention in not
paying the Service Tax in time but they have failed to
include, in their periodical returns filed with the
department, the correct amount of premiums received on
various counts. I find that their act of not showing the
correct amount of various Premium in their periodical
returns amount to suppression as the department has no
other way of knowing the authenticity of the periodical
returns. Noticee had not disclosed the material facts of
non-payment of service tax on retrocession premium,
excess of loss premium and foreign cession of the excess of
loss premium related with terrorism reinsurance services in
their Service Tax Returns submitted to the Department or
by any other way. It, therefore, appears that the Noticee has
deliberately suppressed the same with intention to evade payment
of Service Tax. Had the audit team not visited the premises of the
GIC Re and not conducted audit of the records of the GIC Re, the
National Reinsurer, the above facts would have remained
unearthed. In view of this, I have no doubt in concluding
that extended period of limitation of five years under
proviso to Section 73(1) and 73(4) of the Finance Act, 1994
is invokable upon the noticee."
(emphasis supplied)
17. In regard to the liability to pay interest at the appropriate
rate under section 75 of the Finance Act, the Commissioner
observed as follows :
―30. As far as realisation of interest is concerned, the
Noticee has submitted that taxable event takes place only
when they raise invoice based on Pool administrator‟s
information and that the compliance of rule 6 of the Service
Tax Rules, 1994 is difficult as they get statement of Matrix
from GIC only after 3 years and their agreement to the Pool
also does not provide for payment of Service Tax on
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monthly basis: that they faced genuine hardships of getting
matrix from GIC well in time and therefore they are not liable to
pay penalty or interest. In this regard, I find that the noticee
has deposited the Service Tax of Rs. 28,69,74,247/- for the
period 2009-10 to 2013-14 on their own. However, they
have not deposited the same within the period prescribed
under Rule 6 of the Service Tax Rules, 1994. In view of the
above discussion, I find that the noticee is liable to pay
interest at appropriate rates under Section 75 of the
Finance Act, 1994."
(emphasis supplied)
18. The Commissioner also imposed penalty under section
78 of the Finance Act. The relevant observations are as follows:
―32. Now I come to the question of imposition of penalty upon the
noticee under section 77 and 78 of the Finance Act, 1994. I find
that no specific contravention has been pointed out by the
department against the notice except that the correct amount of
Service Tax on various premiums received by them has not been
paid. In view of above, I find no ground for impositions of penalty
under section 77 of the Finance Act, 1994. As regards
imposition of penalty under section 78 of the Finance Act,
1994 is concerned, I find that the noticee had not disclosed
the material fact of non-payment of service tax on
retrocession premium, excess of loss premium and foreign cession
of the excess of loss premium related with terrorism reinsurance
services in their Service Tax Returns submitted to the Department
or by any other way. They have deliberately suppressed the
same with intention to evade payment of Service Tax. In
view of above, I conclude that there is sufficient ground for
imposition of penalty under section 78 of the Finance Act, 1994 on
the assessee.‖
(emphasis supplied)
19. Shri Narender Singhvi, learned Counsel for the appellant,
made the following submissions :
(i) There is no delay in payment of service tax by the
appellant and thus, the demand of interest is not
sustainable;
(ii) The point of time when the liability to pay service tax
arises, is governed by provisions of rule 6 of the
Service Tax Rules, 19947;
7. 1994 Rules
8 ST/51761/16
(iii) For the period till March 2011, rule 6(1) required
payment of service tax by 5th/ 6th of the month
immediately following the month in which the
payments are received towards the value of taxable
services;
(iv) For the period from April, 2011, the Point of Taxation
Rules, 20118 were enacted for determination of the
point of taxation, i.e. the point in time when a service
shall be deemed to have been provided. Rule 3 of the
2011 Rules provides for the point of taxation;
(v) The date of receipt of premium is the date of provision
of insurance services in an insurance transaction as
was observed by the Tribunal in Bajaj Allianz General
Insurance Co Ltd v. CCE, Pune9;
(vi) In the instant case, the appellant does not know on
monthly basis, the details of premium receivable by it
from respective member companies. These details are
known only on receipt of the matrix from the GIC. On
receipt of such matrix, the appellant raised invoices on
the respective member companies and made book
entries in its books of accounts;
(vii) It is impossible for the appellant to pay service tax on
monthly basis before receipt of matrix, as it does not
know the consideration receivable by it from respective
member companies. Till then, as the identification of
‗another person' and ‗consideration' is not possible, it
cannot be said that the appellant provided any ‗service'
in terms of section 65B(44) of the Finance Act;
(viii) Thus, in the absence of any delay in payment of service
tax by the appellant, the confirmation of demand of
8. 2011 Rules
9. 2009 (13) STR 259 (Tri-Mum),
9 ST/51761/16
interest is not sustainable and the same is liable to be
set aside;
(ix) The extended period of limitation could not have been
invoked and so the demand of interest for the period
upto March, 2013 is time-barred. It has been accepted
by the Adjudicating Authority in the impugned order
that there was no malafide intention on the part of the
appellant. It has, however, been held that failure of the
appellant to show these amount in its ST-3 returns for
the relevant period would amount to suppression of
facts;
(x) Once there was no malafide intention on part of the
appellant, the question of invocation of the extended
period does not arise. Mere failure to mention in ST-3
return does not amount to suppression of facts, which
requires presence of a positive act on part of the
appellant. The impugned Order also fails to establish
any positive act of suppression on the part of the
appellant; and
(xi) In any case, the question of point of time for payment
of service tax on the subject services was an industry-
wide issue, being faced by all member companies and
discussed at the level of GIC. The service tax paid by
the appellant on reinsurance services provided to
member companies was available as CENVAT credit to
them. Similarly, the service tax paid by the appellant
on reinsurance services received from foreign
companies was available as CENVAT credit to the
appellant. In such a case, it cannot be said that there
was suppression of facts with any intention to evade
payment of service tax.
10 ST/51761/16
20. Dr. Radhey Tallo, learned Authorized Representative of the
Department, however, supported the impugned order and
submitted that it does not call for any interference in this appeal.
Learned Authorized Representative also submitted that in the facts
and circumstances of the case, interest was rightly imposed upon
the appellant under section 75 of the Finance Act and the extended
period of limitation was correctly invoked in the present case.
21. The submissions advanced by the learned Counsel for the
appellant and learned Authorized Representative of the
Department have been considered.
Extended Period of Limitation
22. The invocation of the extended period of limitation needs to
be taken up first. According, to learned counsel for the appellant,
the extended period of limitation could not have been invoked for
demanding interest for any period up to March 2013. In this
context, it has been submitted that the applicability of limitation
period is relevant not only to the demand of service tax, but also to
the demand of interest for late payment of service tax.
23. It is true that the same principle would apply to invocation
of the extended period of limitation for demanding interest for late
payment of service tax as they would apply to the demand of
service tax.
11 ST/51761/16
24. It was so held by the Delhi High Court in Kwality Ice
Cream Company vs. Union of India10 and the relevant portion of
the judgment is reproduced below:
―5. It is, therefore, clear that the principle adopted by the
Supreme Court was that the period of limitation, unless
otherwise stipulated by the statute, which applies to a
claim for the principal amount should also apply to the
claim for interest thereon. If that be the position, the period of
limitation prescribed for demand of duty under Section 11A is
normally one year and, in exceptional circumstance of a case
falling under the proviso to Section 11A(1), the period of limitation
is five years. But that would be applicable only in case of
misstatement, fraud, concealment etc., which is not the case here.
As such, in the present case, the period of limitation for the
demand for duty would be one year. By the same logic, the
period of limitation for demand of interest thereon would
be one year. Inasmuch as the demand for interest has been
made beyond a period of one year, the demand would be
clearly hit by the principle of limitation as laid down by the
Supreme Court. Even if, we take the letter dated 25-10-2004 as
the first demand of interest, although that letter was in respect of
a demand for differential duty, the demand would still be beyond a
period of three years.‖
(emphasis supplied)
25. In Bank of Baroda vs. Commissioner of Service Tax,
Mumbai11 a Division Bench of the Tribunal also observed that the
limitation for demanding interest on delayed payment of tax would
be the same as for demanding service tax. The relevant portion of
the decision is as follows:
―9. As regards the interest, we find that the claim of the
department that once payment of tax is made, interest liability
would arise, is legally contrary to the views as has been laid down
by the Hon'ble High Court of Gujarat in the case of Gujarat
Narmada Fertilizers Co. Ltd. (supra). In that case, though the
period of limitation had expired, the assessee therein has
discharged the duty liability, but did not discharge the interest.
Revenue proceeded against the assessee therein for the recovery
of interest claiming that having discharged duty, interest liability
arises. Tribunal set aside the impugned order before it, holding
that if the assessee would have contested the matter on limitation,
he would have succeeded and no duty liability would have arisen,
holding so, set aside the interest liability. Aggrieved by such an
order Revenue preferred an appeal before Hon'ble High Court.
Hon'ble High Court in their judgment at paragraph numbers 11, 12
10. 2012 (27) S.T.R. 8 (Del.)
11. 2015 (40) S.T.R. 1069 (Tri. - Mumbai)
12 ST/51761/16
and 13 held that the order of the Tribunal was correct. With
respect, we reproduce the said paragraphs.
―11. In the present case, when the period of limitation
had already expired and when the extended period beyond
one year was not available to the department as held by
the Commissioner himself in his order-in-original, to our
mind the respondent was not liable to pay even the basic
duty. But for the respondent voluntarily making payment of
such duty short-paid, it was not open for the Department
to recover the same under sub-section (1) of Section 11A
of the Act. In absence of any such voluntary payment,
recovery of the unpaid duty would not have been possible.
In that view of the matter, we do not find the case would
fall under sub-section (2B) of Section 11A of the Act. Sub-
section (2B) of Section 11A of the Act applies in a case
where there is voluntary payment of unpaid duty before
issuance of show cause notice under sub-section (1) of
Section 11A. When the provision refers to show cause
notice, it means a show cause notice which could have
been validly issued and surely not a notice which had
become time-barred. If by efflux of time and in absence of
availability of extended period of limitation, such show
cause notice itself had become time-barred, any payment
made voluntarily by the manufacturer cannot be viewed as
one made under sub-section (2B) of Section 11A of the Act.
12. In the present case, we have already held that
time for issuing such a notice was one year, which
period had already expired.
13. Accepting the stand of the Department that even
in such a case once the payment of duty is made,
interest liability would follow would bring about an
incongruent situation. The recovery of the unpaid or
short paid duty would become time-barred. If the
manufacturer does not pay it voluntarily, it would not
be possible for the Department to recover the same.
But if he does it voluntarily despite completion of
period of limitation, he would, further be saddled
with the liability to pay statutory interest. Surely,
this was not the intention of the Legislature while
sub-section (2B) was introduced in Section 11A of the
Act.‖
10. It can be seen from the above reproduced relevant
paragraphs the ratio would squarely apply in the case in hand, as
on limitation, we do find that the appellant could have succeeded
and the findings of the adjudicating authority in paragraph No. 39
of the impugned order also indicates that there was no intention
on appellant's part of evading the service tax liability, which would
mean that demand of service tax liability can be only within the
limitation period, that is the one year from the date of issuance of
show cause notice.‖
(emphasis supplied)
26. It is in paragraph 29.1 of the impugned order that the
Commissioner has recorded findings regarding the invocation of the
13 ST/51761/16
extended period of limitation. This paragraph has been reproduced
above in paragraph 16 of this order. The Commissioner noticed
that though the appellant had failed to disclose receipt of various
premiums in the periodical returns and it started identifying the
service tax liability only after the audit of the record was
undertaken in the year 2013, but the appellant had paid most of
the amount of service tax on its own, even before the issuance of
the show cause notice. An inference was, however, drawn by the
Commissioner from the aforesaid facts that the appellant was
aware of the liability to pay service tax. It is thereafter that the
Commissioner observed: ‗It may be that they have no malafide
intention in not paying the service tax in time but they have
failed to include, in their periodical returns filed with the
department' the correct amount of premium received on various
counts. The Commissioner, therefore, held that this would amount
to ‗suppression' as the department had no other way of knowing
the authenticity on the periodical returns. The Commissioner,
ultimately, concluded that it appeared that the appellant had
deliberately „suppressed‟ facts with an intention to evade
payment of service tax.
27. The submission advanced by the learned counsel of the
appellant is that when there was no malafide intention on the part
of the appellant, the extended of limitation could not have been
invoked, as mere failure to mention the receipts in the ST-3 return
would not amount to ‗suppression' of facts. The contention of
learned counsel of the appellant is that there should have been
14 ST/51761/16
some positive act of ‗suppression' on the part of the appellant,
which act, the impugned order has failed to establish.
28. Dr. Radhe Tallo learned Authorized Representative of the
Department however, submitted that the Commissioner committed
no illegality in invoking the extended period of limitation and in this
connection placed reliance upon the decisions of the Tribunal in
Timken India Limited vs. Commissioner of Central Excise,
Jamshedpur12 and Bharti Hexcom Ltd. vs. Commissioner of
Central Excise, Jaipur-I13 and of the Bombay High Court in
McKinsey & Company Inc. vs. Commissioner of Central
Excise14.
29. Section 73(1) of the Finance Act deals with recovery of
service tax not levied or paid or short levied or short paid. The
extended period of limitation can be invoked under the proviso to
section 73(1) of the Finance Act, in which case notice can be
served within five years. If the extended period of limitation is not
invoked in the present case, any demand of service tax up to
March 2013 would be time barred. One circumstance mentioned in
the proviso to section 73(1) of the Finance Act, is when there has
been a ‗suppression of facts'.
30. The Supreme Court and the Delhi High Court have held that
‗suppression of facts' has also to be ‗wilful' and with an intent to
evade payment of service tax.
12. 2019 (22) G.S.T.L. 282 (Tri. - Kolkata)
13. 2019 (24) G.S.T.L. 588 (Tri. Del.)
14. 2019 (20) G.S.T.L. 198 (Bom.)
15 ST/51761/16
31. In Pushpam Pharmaceutical Co. vs. Commissioner of
Central Excise, Bombay15, the Supreme Court examined whether
the Department was justified in initiating proceedings for short levy
after the expiry of the normal period of six months by invoking the
proviso to section 11A of the Excise Act. The proviso to section 11A
of the Act carved out an exception to the provisions that permitted
the Department to reopen proceedings if the levy was short within
six months of the relevant date and permitted the Authority to
exercise this power within five years from the relevant date under
the circumstances mentioned in the proviso, one of which was
‗suppression of facts'. It is in this context that Supreme Court
observed that since ―suppression of fact‟ had been used in the
company of strong words such as fraud, collusion, or willful default,
suppression of facts must be deliberate and with an intent to
escape payment of duty. The observations are as follows;
―4. Section 11A empowers the Department to re-open proceedings
if the levy has been short-levied or not levied within six months
from the relevant date. But the proviso carves out an exception
and permits the authority to exercise this power within five years
from the relevant date in the circumstances mentioned in the
proviso, one of it being suppression of facts. The meaning of the
word both in law and even otherwise is well known. In normal
understanding it is not different that what is explained in various
dictionaries unless of court the context in which it has been used
indicates otherwise. A perusal of the proviso indicates that it has
been used in company of such strong words as fraud, collusion or
wilful default. In fact it is the mildest expression used in the
proviso. Yet the surroundings in which it has been used it has to
be construed strictly. It does not mean any omission. The act
must be deliberate. In taxation, it can have only one
meaning that the correct information was not disclosed
deliberately to escape from payment of duty. Where facts
are known to both the parties the omission by one to do
what he might have done and not that he must have done,
does not render it suppression."
(emphasis supplied)
15. 1995 (78) E.L.T. 401 (S.C.)
16 ST/51761/16
32. This decision was referred to by the Supreme Court in
Anand Nishikawa Company Ltd. vs. Commissioner of Central
Excise16 and the observations are as follows:
‖26........... This Court in the case of Pushpam
Pharmaceutical Company v. Collector of Central Excise,
Bombay, while dealing with the meaning of the
expression "suppression of facts" in proviso to Section
11A of the Act held that the term must be construed
strictly. It does not mean any omission and the act must
be deliberate and willful to evade payment of duty. The
Court, further, held:-
―In taxation, it (―suppression of facts‖) can have only one
meaning that the correct information was not disclosed
deliberately to escape payment of duty. Where facts are
known to both the parties the omission by one to do what
he might have done and not that he must have done, does
not render it suppression.‖
27. Relying on the aforesaid observations of this Court in the
case of Pushpam Pharmaceutical Co. v. Collector of Central
Excise, Bombay [1995 Suppl. (3) SCC 462], we find that
"suppression of facts" can have only one meaning that
the correct information was not disclosed deliberately to
evade payment of duty. When facts were known to both the
parties, the omission by one to do what he might have done
not that he must have done would not render it suppression. It
is settled law that mere failure to declare does not amount to
willful suppression. There must be some positive act from the
side of the assessee to find willful suppression. Therefore, in
view of our findings made herein above that there was
no deliberate intention on the part of the appellant not
to disclose the correct information or to evade payment
of duty, it was not open to the Central Excise Officer to
proceed to recover duties in the manner indicated in
proviso to Section 11A of the Act."
(emphasis supplied)
33. These two decisions of the Supreme Court in Pushpam
Pharmaceuticals and Anand Nishikawa Company Ltd. were
followed by the Supreme Court in a subsequent decision rendered
in Uniworth Textile Limited vs. Commissioner of Central
Excise, Raipur17 and the observation is:
16. 2005 (188) E.L.T. 149 (SC)
17. 2013 (288) E.L.T. 161 (S.C.)
17 ST/51761/16
―18. We are in complete agreement with the principal enunciated
in the above decisions, in light of the proviso to section 11A of the
Central Excise Act, 1944.‖
34. The Supreme Court in Continental Foundation Joint
Venture Holding vs. Commissioner of Central Excise,
Chandigarh-I18 also held as follows:
―10. The expression "suppression" has been used in the
proviso to Section 11A of the Act accompanied by very
strong words as 'fraud' or "collusion" and, therefore, has to
be construed strictly. Mere omission to give correct
information is not suppression of facts unless it was
deliberate to stop the payment of duty. Suppression means
failure to disclose full information with the intent to evade
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.‖
(emphasis supplied)
35. The Delhi High Court in Bharat Hotels Limited vs.
Commissioner of Central Excise (Adjudication)19 also
examined at length the issue relating to the extended period of
limitation under the proviso to Section 73 (1) of the Act and held
as follows;
―27. Therefore, it is evident that failure to pay tax is not a
justification for imposition of penalty. Also, the word ―suppression‟
in the proviso to Section 11A(1) of the Excise Act has to be read in
the context of other words in the proviso, i.e. ―fraud, collusion,
wilful misstatement‖. 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 excise duty.
xxxxx
Thus, invocation of the extended limitation period under the
proviso to Section 73(1) does not refer to a scenario where there
18. 2007 (216) E.L.T. 177 (S.C.)
19. 2018 (12) GSTL 368 (Del.)
18 ST/51761/16
is a mere omission or mere failure to pay duty or take out a
license without the presence of such intention.
xxxxx
The Revenue has not been able to prove an intention on the part
of the Appellant to avoid tax by suppression of mention facts. In
fact it is clear that the Appellant did not have any such intention
and was acting under a bonafide belief‖
36. It is, therefore, clear that even when an assessee has
suppressed facts, the extended period of limitation can be evoked
only when ―suppression‟ is shown to be willful and with an intent to
evade payment of service tax.
37. The Commissioner has not recorded any finding that even if
the appellant had suppressed the fact of having received the
amount, it was willful and with an intent evade payment of service
tax. In fact, the Commissioner observed that there was no malafide
intention on the part of the appellant to suppress this fact.
38. This apart, it has been pointed out by learned counsel for
the appellant that the issue relating to the point of time for
payment of service tax on the services in question was prevailing
in the industry and was being discussed with GIC. It has also been
pointed out that the service tax to be paid by the appellant on
reinsurance services provided to member companies was available
as CENVAT credit to the appellant. Likewise, the service tax paid by
the appellant on reinsurance services received from foreign
companies was also available as CENVAT credit. Such being the
position, the appellant is correct in contending that there was no
suppression of facts with any intention to evade payment of service
tax.
19 ST/51761/16
39. Learned Authorized Representative of the Department has,
however, placed reliance upon the decisions of the Tribunal in
Timken India Limited and Bharti Hexcom Limited.
40. In Timken India Limited, the Tribunal observed as
follows:
―12. On the issue of limitation we feel that the appellant being an
old assessee were very well aware about the provisions of Service
Tax Act we feel that if they had any doubt regarding the
classification of the services availed by them, in that case they
should have approached the department for necessary clarification
on the issue. As the assessee is working in the era of self-
assessment and therefore the responsibility lies with them to
classify the service availed/provided by them correctly and if any
confusion or difficulty they are certainly free to approach the
revenue authorities for necessary clarifications. We feel that the
appellant has not come clean on this aspect and therefore we feel
that the extended time proviso for demanding service tax has
rightly been involved in their case.‖
41. The Tribunal found as a fact there was a positive act on the
part of the appellant in suppressing facts. This decision would,
therefore, not help the department.
42. Likewise, the decision of the Bombay High Court in
McKinsey & Company Inc. would also not help the Department
as it was based on its own facts and a categorical finding that there
was an intention to evade payment service tax.
43. Thus, in the facts and circumstances of the present case,
the extended period of limitation could not have been invoked. Any
demand up to March 2013 would, therefore, barred by limitation.
20 ST/51761/16
Merit- Delay in Payment of Service Tax
44. The contention advanced by learned counsel for the
appellant is that since there has been no delay in payment of
service tax, the demand of interest is not sustainable.
45. The details of the matrixes for the relevant period that were
received from GIC have been provided by the appellant as under:
Financial year Date of receipt of matrix from GIC
2009-10
2010-11 27.01.2014
2011-12
2012-13 04.10.2013
2013-14 01.01.2014 (Quarter 1 and Quarter 2)
2013-14 24.03.2014 (Quarter 3)
2013-14 45.07.2014 (Quarter 4)
46. The submission of learned Counsel for the appellant is that
as per the Insurance Act, the insurer cannot assume the risk unless
the premium is paid, which is the consideration for the service of
assuming the risk and indemnifying the loss. As in the present
case, premium is paid to them only after the receipt of the matrix
from GIC, that date should be reckoned as the date of provision of
service and so there is no delay in payment of service tax.
47. It is true that the general principle under Insurance Act is
that unless the premium is paid, the insurer cannot assume the
risk (which is the service of Insurance). It is for this reason that,
no policy is issued unless the premium is paid in advance and no
risk is assumed by the insurer before this date. However, this is
not the case with reinsurance.
21 ST/51761/16
48. In the first instance, unlike in normal insurance policies, the
risk in re-insurance is assumed by the appellant as soon as the re-
insurance treaty is signed. On a specific querry put to the learned
counsel for the appellant that if there was a claim after the re-
insurance treaty was signed but before the premium was actually
received, than whether the appellant would be liable to pay their
share of the claim, the learned counsel stated in the positive. This
clearly means that the service re-insurance company provides to
the insuring company starts as soon as the treaty/ contract is
signed. The share of the premium with respect to each insurance
policy issued by the insuring company is fixed, but this share is
received much later, usually once the accounts are squared up and
this may often happen even after the period of insurance specified
in the treaty / contract is over.
49. In the present case, the accounts were squared up after
three years much after the relevant period for which the insurance
was issued. The service could have been provided only during the
period of insurance and it could not have been provided after the
period is over. Thus, the re-insurer assumes his share of the risk
with respect to every policy issued by the insuring company as
soon as the policy is issued.
50. Secondly, if no risk is assumed until the premium is paid, it
will be impossible for any reinsurance to operate. If A(the insured)
obtains a policy from B (the insurer) who has, as per the re-
insurance treaty, ceded, say, 10% of the premium and risk to C
(the reinsurer), the risk is assumed by B (to indemnify A) and C (to
22 ST/51761/16
indemnify B) as soon as the policy is issued by B to A. It will be
impractical for the insurer B to keep sharing a portion of the
premium with the re-insurer C every time a policy is issued or seek
a portion of the claim from C every time a claim is settled by the
insurer B. Therefore, the accounts are squared up only at the end
of the period.
51. Thirdly, and most importantly, section 64VB of the
Insurance Act, which is relevant, does not apply to re-insurance. It
reads as follows:
"64VB. No risk to be assumed unless premium is received in
advance.--
(1) No insurer shall assume any risk in India in respect of any
insurance business on which premium is not ordinarily payable
outside India unless and until the premium payable is received by
him or is guaranteed to be paid by such person in such manner
and within such time as may be prescribed or unless and until
deposit of such amount as may be prescribed, is made in advance
in the prescribed manner.
(2) For the purposes of this section, in the case of risks for which
premium can be ascertained in advance, the risk may be assumed
not earlier than the date on which the premium has been paid in
cash or by cheque to the insurer.
Explanation. --Where the premium is tendered by postal money
order or cheque sent by post, the risk may be assumed on the
date on which the money order is booked or the cheque is posted,
as the case may be.
(3) Any refund of premium which may become due to an insured
on account of the cancellation of a policy or alteration in its terms
and conditions or otherwise shall be paid by the insurer directly to
the insured by a crossed or order cheque or by postal money
order and a proper receipt shall be obtained by the insurer from
the insured, and such refund shall in no case be credited to the
account of the agent.
(4) Where an insurance agent collects a premium on a policy of
insurance on behalf of an insurer, he shall deposit with, or
dispatch by post to, the insurer, the premium so collected in full
without deduction of his commission within twenty-four hours of
the collection excluding bank and postal holidays.
23 ST/51761/16
(5) The Central Government may, by rules, relax the requirements
of sub-section (1) in respect of particular categories in insurance
policies.
(6) The Authority may, from time to time, specify, by the
regulations made by it, the manner of receipt of premium by the
insurer.‖
52. Sub-section (5) authorizes the Central Government to relax
this requirement of receiving premium in advance. Rule 59 of the
Insurance Rules, 1939 relaxes this requirement for several types of
cases, including re-insurance policies. The relevant portion of Rule
59, which deals with relaxation, is reproduced below:-
―Rule 59. In respect of the categories of insurance policies
mentioned there under the requirements of sub-section (1) of Sec.
64-VB shall stand relaxed to the extent and in the manner
mentioned against each category of policy, subject to the
conditions mentioned therein:
(a)
(b)
....
(m) Policies of re-insurance.-
(i) Risk may be assumed without payment of premium in advance on insurances accepted under automatic re- insurance contracts.
(ii) In the case of facultative re-insurances accepted, risk maybe assumed without payment of premium in advance if the ceding insurer has given an undertaking to pay his share of the premium, installment of premium, premium subject to delayed payment or, where a deposit premium, or provisional premium was paid on the original policy, the adjusted premium, or, in the case of premiums subject to delayed payment, the delayed premium as the case may be, before the end of the calendar month succeeding the month in which the premium is due under the original policy.‖
53. Thus, section 64VB (5) of the Insurance Act read with rule 59 of the Insurance Rules, clearly excludes re-insurance from the general rule that no risk should be assumed until the premium is paid. The consideration in re-insurance policies can be like in any other contract (past, present or future).
24 ST/51761/16
54. The issue, therefore, that arises for consideration is when service is rendered and service tax is due but the appellant is not able to pay it until the accounts are squared up and thereby delays paying the service tax, than whether in such a situation the appellant is liable to pay interest on the delayed payment, considering that the delay is not on account of the fault of the appellant.
55. A similar issue comes up often in Central Excise matters when the transaction value of the goods is unknown, either partly or fully when the goods are cleared. This happens with Government contracts which fix the price based on a formula, several elements of which (say cost of raw material or minimum wages of the labour) are not known at the time of clearance. Later, when they get the details, they pay the differential excise duty. The question whether interest needs to be paid even in such cases for the period when the excise duty is due and when it is actually paid was answered in the affirmative by a Constitution Bench of the Supreme Court in Steel Authority of India Ltd. vs Commissioner of Central Excise Raipur20. The observations of the Supreme Court are as follows:
―63. we are of the view that the reasoning of this court in the order referring the cases to us (to this Bench) that for the purpose of Section 11AB, the expression ―ought to have been paid‖ would mean the time when the price was agreed upon by the seller and the buyer does not square with our understanding of the clear words used in Section 11AB and as the rules proclaim otherwise and it provides for the duty to be paid for every removal of goods on or before the 6th day of the succeeding month. Interpreting the words in the manner contemplated by the Bench which referred the matter would result in doing violence to the provisions of the Act and the Rules which we have interpreted. We have already noted that when an assessee in similar circumstances resorts to provisional assessment upon a final determination of the value 20 . Civil Appeal No. 2150 of 2012 decided on May 08, 2019 25 ST/51761/16 consequently, the duty and interest dates back to the month ―for which‖ the duty is determined. Duty and interest is not paid with reference to the month in which final assessment is made. In fact, any other interpretation placed on Rule 8 would not only be opposed to the plain meaning of the words used but also defeat the clear object underlining the provisions. It may be true that the differential duty becomes crystalised only after the escalation is finalized under the escalation clause but it is not a case where escalation is to have only prospective operation. It is to have retrospective operation admittedly. This means the value of the goods which was only admittedly provisional at the time of clearing the goods is finally determined and it is on the said differential value that admittedly that differential duty is paid. We would think that while the principle that the value of the goods at the time of removal is to reign supreme, in a case where the price is provisional and subject to variation and when it is varied retrospectively it will be the price even at the time of removal. The fact that it is known, later cannot detract from the fact, that the later discovered price would not be value at the time of removal.
Most significantly, section 11A and section 11AB as it stood at the relevant time did not provide read with the rules any other point of time when the amount of duty could be said to be payable and so equally the interest. We would concur with the views expressed in SKF case (supra) and International Auto (supra).‖
56. In CCE vs SKF India Ltd21, the Supreme Court held as follows:
―17. We are unable to subscribe to the view taken by the High Court in Rucha Engg. [First Appeal No. 42 of 2007 decided on 3-4- 2007] It is to be noted that the assessee was able to demand from its customers the balance of the higher prices by virtue of retrospective revision of the prices. It, therefore, follows that at the time of sale the goods carried a higher value and those were cleared on short-payment of duty. The differential duty was paid only later when the assessee issued supplementary invoices to its customers demanding the balance amounts. Seen thus, it was clearly a case of short-payment of duty though indeed completely unintended and without any element of deceit, etc. The payment of differential duty thus clearly came under sub-section (2-B) of Section 11-A and attracted levy of interest under Section 11-AB f the Act.‖
57. Although this is a service tax matter, the provisions are pari materia and if service tax is due on a date but is paid much later because data is not available with the assessee, interest has to be paid. Thus, the demand of interest from the appellant for the period post March 2013 upto March 2014 is justified. 21 . (2009) 13 SCC 461 26 ST/51761/16 Penalty
58. The Commissioner has imposed penalty under section 78 of the Finance Act for the reason that the appellant had deliberately suppressed or had not disclosed the material fact of non-payment of service tax on retrocession premium, excess of loss premium and foreign cession of the excess of loss premium related to terrorism reinsurance services with an intention to evade payment of service tax. While dealing with the issue as to whether the extended period of limitation under the first proviso to section 73 of the Finance Act could have been invoked in the facts and the circumstances of the case, it has been found as a fact that the suppression of facts was not willful nor was there any intent to evade payment of service tax. Thus, for all the reasons stated while dealing with the extended period of limitation, penalty under section 78 of the Finance Act could not have been imposed upon the appellant. The Commissioner was, therefore, not justified in imposing penalty under section 78 of the Finance Act as there was no deliberate suppression of facts with intention to evade payment of service tax.
59. In the result it is held that since the extended period of limitation could not have been invoked the demand of any interest up to March 2013 is not justified. However, the demand of interest for the period post March 2013 up to March 2014 is sustained. Penalty could also not have been imposed under section 78 of the Finance Act.
27 ST/51761/16
61. The appeal, therefore, succeeds in part. The impugned order dated September 7, 2016 passed by the Commissioner is set aside to the extent it has demanded interest for the period up to March 2013 and has imposed penalty under section 78 of the Finance Act. The demand of interest for period post March 2013 up to March 2014, however, is sustained.
(Pronounced on 25.05.2021) (JUSTICE DILIP GUPTA) PRESIDENT (P.V. SUBBA RAO) MEMBER (TECHNICAL) Golay/JB/Shreya