Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/Case Laws/2012-13/1009

Fixing amount of Pre-desposit

Case: MASTER MARINEN SERVICES P. LTD. V/s COMMR. OF SERVICE TAX, MUMBAI 
 
Citation: 2012 (25) S.T.R. 227 (Bom.)
 
Issue:- Fixing amount of Pre-deposit – factors weighing for determining amount.
 
Brief Facts: - Appellants engage in the activity of storage and warehousing of containers, survey of ship/cargo/containers and other ancillary services in relation to export cargo. The Appellants were registered with the Service tax Authorities under the following categories:
 
"Storage and warehousing service"; "Cargo handling service", and "Technical inspection service".
 
Show cause notice was issued to the appellants demanding service tax dues on the ground that they had short paid the service tax for the period between April 2003 to March 2007. Penalty was also proposed to be imposed.
 
Before the Commissioner, during the course of adjudication proceedings, the appellants submitted that an amount of Rs. 5.57 crores was admittedly paid towards service charge dues out of the total dues of Rs. 5.85 crores. Of this, Rs. 1 crore was paid before the investigating Officer visited their office while an amount of Rs. 2.51 crores was deposited regular payment for Financial Year 2006-07. According to the appellant, the total dues which ought to have been demanded was only Rs. 28.64 lakhs being the difference between the total amount due of Rs. 5.85 crores and Rs. 5.57 crores which was the service tax admittedly paid. It was contended that if the amount due was only Rs. 28.64 Lakhs, the adjudication would have to be before the Additional Commissioner of Central Excise under the relevant notification and they would have been entitled to a right of appeal before the Commissioner. The Appellants, however, stated that they did not desire to litigate the matter any further. Accordingly, they sought to avail of the benefit under Section 73(1A) of the Finance Act, 1994. In order to do so, the Appellants stated that they had paid the entire amount of Rs. 28.64 lakhs together with interest in the amount of Rs. 8.06 lacs by challans dated 19th November 2008 and 20 November 2008 and the penalty representing 25% of the total dues in the amount of Rs. 7.19 lakhs on 20th November 2008 and 29th November 2011 within thirty days from the receipt of the notice. The Appellants stated that the payment of interest of Rs. 5.06 lakhs was effected beyond the period of thirty days as a result of the fact that on 26th and 27th November 2008 City of Mumbai had been paralyzed due to terror attacks.
 
Appellant’s submissions were rejected by the Commissioner observing that the Appellants had made payment belatedly from time to time. The Commissioner by his order confirmed the demand of Rs. 5.85 crores, appropriated the amount of Rs. 5.70 crores which is paid by the Appellants and confirmed the demand for payment of interest. A penalty of Rs. 6 crores was imposed under Section 78.
 
In appeal before the Tribunal, Appellant moved an application for waiver of a pre deposit. The Tribunal observed that the Appellants ought to have paid the service tax within time and should have filed periodical returns. The Tribunal observed that it was not concerned whether the Appellants had or not charged/collected service tax since it was their duty to file returns and pay service tax on time. The Tribunal did take notice of the fact that the Appellants had admitted their service tax liability of almost Rs. 5.71 crores. Taking note of the fact that the Appellants had paid an amount of Rs. 7 lakhs towards penalty, they were further directed to pay Rs. 50 lakhs towards the penalty.
 
Appellant have filed appeal before the High Court being aggrieved by the order passed by the Tribunal on an application for waiver of pre-deposit of under Section 83 of the Finance Act, 1994 read with Section 35F of the Central Excise Act, 1944.
 
Appellant’s Contention: - Appellant asserted that they were entitled to the benefit of Section 73(1A) and had in fact complied with the statutory provision. Further they submitted that they had paid almost 99% of the service tax dues besides 25% of the penalty and interest as required in law. In these circumstances, he submitted that they ought to have been granted waiver from the requirement of depositing a sum of Rs. 50 lakhs.
 
 
Respondent’s Contention: - Revenue submitted that no case for waiver is made out.
 
Reasoning of Judgment: -The High Court held that according to the Appellants, an amount of Rs. 3.51 crores was paid even before the issuance of the notice to show cause dated 24th October 2008 comprising of an amount of Rs. 1 crore which was paid before the visit of the investigating officer and Rs. 2.51 crores being the regular payment for Financial Year 2007-08. The Appellants did not dispute the liability to pay service tax dues. While seeking the benefit of Section 73(1A), the Appellants claim to have paid duty in the amount of Rs. 78.64 lakhs, 25% of the penalty payable on the aforesaid amount and interest. Whether the Appellant has in fact fulfilled the requirement of Section 73(1A) is a matter which will fall for determination before the Tribunal in the pending appeal. From the record before the Court, it appears from the order of the Tribunal that the Appellants had by their stay application sought a waiver of a pre-deposit of an amount of Rs. 14,61,843/- being the balance amount payable towards Service tax and of the penalty. The Tribunal has directed the Appellants to deposit an amount of Rs. 50 lakhs. They viewed that having regard to the fact that the Appellants had admitted their liability to pay service tax and had paid an amount initially of Rs. 5.57 crores and, thereafter a further amount of Rs. 28.64 lakhs, these factors should weigh in the determination of the total amount which they must now be called upon to deposit. Further the ends of justice would be met if in addition to the amount of Rs. 14.61 lakhs which is claimed towards service tax dues, the Appellant is directed to pay an additional amount so as to make up a total deposit of Rs. 25 lakhs. Accordingly, they modify the order of the Tribunal by directing that the Appellant shall deposit an amount of Rs. 25 lakhs within a period of four weeks from today instead and in substitution of the direction issued by the Tribunal. In the event the Appellant fails to make deposit as directed, necessary consequences under the law shall ensue.
 
Decision: - Appeal disposed off.

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com