Power of a “semi-colon” & an “or” in Section 73 of the Finance Act, 1994
Our friendly Netizen has sent this “interesting” interpretation making the rounds in the Central Excise & Service tax formations, thanks to an erudite Commissioner in a coastal city.
Here is an extract from the recovery sections concerning Excise & Service tax.
11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded.-
Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if, for the words one year, the words "five years" were substituted.
SECTION 73. Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded.
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) wilful mis-statement; or
(d) suppression of facts; or
(e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax,
by the person chargeable with the 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.
Take a look at both the recovery Sections. Whereas Section 11A employs the punctuation mark “comma” after the word fraud & an “or” after the words collusion, any willful misstatement, suppression of facts, contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, the provisions of Section 73 employ a semi-colon “;” & also an “or” after each of these words – fraud, collusion, willful misstatement, suppression of facts. Incidentally, in section 11A, there is one more ‘comma’ after the word ‘suppression of facts’.
What could be the reason for this?
Does it mean that a “semi-colon” [;] & an “or” are more powerful than a “comma” & a simple ‘or’ OR does it mean “nothing”?
Somewhere along the coast, an adjudicating authority, after poring over innumerable decisions concerning ‘statutory interpretation’ has taken a view that “intent to evade payment of Service Tax” would not apply to sub-heading (a) to (d) of the said proviso in Section 73. Meaning to say, that there is no need to prove “an intention to evade payment of Service tax” for issuing the extended period demand notices in Service tax matters.
Great interpretation though!