IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE TUESDAY, THE5H DAY OF NOVEMBER201314TH KARTHIKA, 1935 C.E.Appeal.No. 8 of 2013 () ---------------------------- AGAINST THE ORDER
/JUDGMENT
IN ST265062013 of CUSTOMS,EXCISE&SERVICE TAX APP.TRIBUNAL,BANGALORE DATED1908-2013 APPELLANT(S): ------------- CENTRE FOR DEVELOPMENT OF IMAGING TECHNOLOGY(C-DIT) CHITRANJALI HILLS, THIRUVALLOM THIRUVANANTHAPURAM - 695 027. BY ADV. SRI.C.S.AJITH PRAKASH RESPONDENT(S): -------------- THE COMMISSIONER OF SERVICE TAX-SERVICE TAX THIRUVANANTHAPURAM-695001. BY ADV. SRI.TOJAN J.VATHIKULAM,SC,C.B. EXCISE THIS CENTRAL EXICISE APPEAL HAVING COME UP FOR ADMISSION ON0511-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX C.E.Appeal.No. 8 of 2013 APPELLANT'S EXHIBITS: ANNEXURE-A: COPY OF BYE-LAW OF OTHE C-DIT. ANNEXURE-B: COPY OF SHOW CAUSE NOTICE DATED1910.2011. ANNEXURE-C: COPY OF SHOW CAUSE NOTICE DATED164.2012. ANNEXURE-D: COPY OF ADJUDICATION ORDER
PASSED BY THE RESPONDENT. ANNEXURE-E: COPY OF STATEMENT FURNISHED BY THE REGISTRAR, C-DIT DATED184.2006. ANNEXURE-F: COPY OF LETTER DATED2812.2007. /TRUE COPY/ PS TO JUDGE MANJULA CHELLUR, C.J & A.M.SHAFFIQUE, J.
---------------------------------------------- C.E.Appeal.No. 8 of 2013 ---------------------------------------------- Dated this the 5th November, 2013 JUDGMENT
Manjula Chellur, C.J.
Heard learned counsel for the petitioner as well as Standing Counsel for the Department.
2. Appellant before us, claiming to be a registered Society owned by the Government of Kerala, is the Centre For Development of Imaging Technology (C-DIT). The appellant is aggrieved by the impugned order dated 19.8.2013 refusing waiver of total service tax of 1,71,24,449/- and further directing pre-deposit of 1,00,00,000/- while considering the application for waiver of pre-deposit. Prima facie the matter regarding limitation to issue demand notice as contemplated under Section 73 of the Finance Act came up for consideration and at paragraph 6 of the order of the Tribunal, without discussing anything with reference to the date of demand notice and the provisions of Section 73, the Tribunal opined that the demand is in time, is the contention of the appellant before us. Section 73(1) of the Finance Act refers CEA.8/13 2 to limitation within which a demand could be made calling upon the assessee to pay service tax. Section 73(1) of the Finance Act reads as under: "where any service tax has not been levied or paid or has been short levied or short paid or erroneously refunded, the Central Excise Officer may, within one year from the relevant day, serve notice on the person chargeable with Service Tax which has not been levied or paid or which has been short levied or short paid or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the Notice. Provided that where any Service Tax has not been levied or paid or has been short levied or short paid or erroneously refunded by reason of- (a) Fraud or (b) Collusion or (c) Willful Mis-statement or (d) Suppression of facts or (e) Contravention of any of the provisions of this Chapter or (f) Of the Rules made there under with intend to evade the payment of Service Tax CEA.8/13 3 by the person chargeable with Service Tax or his Agent, the provisions of this sub section shall have effect, as if, for the words 'one year', the words 'five years' had been substituted." 3. Reading of the above Section clearly indicates under what circumstances period of one year limitation could be considered and when period of five years has to be read instead of one year. Without referring to what exactly was the case of the appellant, so far as issue of limitation is concerned, the Tribunal proceeded to opine in one line that the demand is not time barred as contended by the appellant. As a matter of fact, the appellant also raised a contention that no prima facie case as shown in the show cause notice was forthcoming. If once the Tribunal decides the limitation issue, even if the demand is in order, then the department may not be entitled to collect the amount of service tax and then further impose any penalty. Therefore, the issue of limitation as provided under Section 73 read with the proviso is very relevant and unfortunately, nothing is said about this aspect of the matter in the impugned order.
4. Accordingly, we set aside the order dated 19.8.2013 directing the Tribunal to consider Section 73 of the Finance Act with reference to the date of demand and other relevant facts so CEA.8/13 4 far as the present case is concerned and then proceed with the conditional order of stay or otherwise. The Central Excise Appeal is allowed as above. MANJULA CHELLUR, CHIEF JUSTICE A.M.SHAFFIQUE, JUDGE vgs6.11