The Allahabad Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) ruled that the delay in not filling of ST-3 returns amounts to suppression of facts for invoking extended period.
In terms of this order a verification was conducted by the Departmental officers and a discrepancy report dated 10.01.2011 was prepared and given to the concern Additional Commissioner Adjudication. Thereafter, the stay application filed by the appellant was decided by Stay Order No.ST/197/2011 dated 28.03.2011 directing the appellant to deposit an amount of Rs.13 lakhs within 8 weeks. Compliance to the said order has been noted by Miscellaneous Order No.ST/134/11 dated 10.08.2011.
On the issue of grossing up this demand has been made by taking the taxable value as indicated in the claim for taxable value in the ST-3 returns. However, appellant has contested this demand stating that the amount of taxable value indicated in ST-3 returns advertently included the service tax also. Officers verifying the same agree to the contention raised by the appellant. However, they refuse to comment on admissibility of the same as this issue was not raised at the time of adjudication.
A Two Member Bench of PK Choudhary, Technical Member and Sanjiv Srivastava, Judicial Member observed that “We find merits in the contention raised and the benefit for computing the taxable values the service tax paid has to be detected from the gross value as per Section 67 (2) of the Finance Act, 1994. Thus the amount of Rs.14,65,840/- as determined by the officers in their report in respect of such clerical error needs to be deleted from the total demand as confirmed by Order-in-Original.”
“The findings recorded by the Commissioner as observed is based upon various decisions of the Tribunal, wherein it has been held that delay in not filling of ST-3 returns amounts to suppression of facts for invoking the extended period. We agree with the said findings as it was the statutory obligation imposed on the appellant to have filed ST-3 returns in time. In absence of the same the charge of suppression during the material period has to be upheld that being so invocation of extended period in the present case is justified and upheld” the Tribunal concluded.
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