Commissioner of Service Tax Kolkata Vs Electro Steel Casting Ltd (Calcutta High Court)
Calcutta High Court held that invocation of extended period of limitation without establishing wilful mis-statement and suppression of material facts with intent to evade payment of tax is not justifiable. Accordingly, entire order passed by adjudicating authority is set aside.
Facts- The assessee filed the said appeal before the learned Tribunal challenging the order in original dated 25.07.2014 passed by the Service Tax Commissionerate, Kolkata. By the said order the demand of service tax made in the show cause notice was confirmed in exercise of the power under Section 73(2) of the Finance Act, 1994 (as amended), the demand of cenvat credit under Proviso to Section 73(2) of the Finance Act, 1994 as amended read with Rule 14 of the Cenvat Credit Rules, 2004 was confirmed and interest was directed to be paid and penalty was also imposed.
Conclusion- Held that merely by extracting the statutory provision would not suffice as the assessing officer has to indicate as to how the assessee resorted to willful mis-statement and suppression of material facts in their statutory returns with an intent to evade payment of tax. This being conspicuously absent, the question of invoking the extended period of limitation would not arise. Apart from that, on going through the order of adjudication, it is seen that all data was culled out from the assessee’s books and the returns which have been filed and there was no extraneous material based on which the adjudicating authority had initiated the process by issuing the show cause notice dated 22.07.2017. Therefore, in the facts and circumstances of the case on hand, there was no material brought on record by the adjudicating authority to establish that the assessee had made willful mis-statement and suppressed the material facts with an intent to evade payment of tax. In the light of the above findings, the entire order passed by the adjudicating authority was liable to be set aside and the learned Tribunal was justified in doing so.
