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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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PJ/Case Laws/2010-11/1071

Imposition of Penalty under Section 78

Case: Commissioner of C. Ex., Mangalore v/s K. Vijaya C. Rai
 
Citation: 2011 (21) STR 224 (Kar.)
 
Issue:- Whether Penalty under Section 78 regarding willful suppression and evasion of tax can be waived if interest and penalty are paid?
 
Brief Facts: - Respondent-assessee was providing Rent-a-cab services to M/s New Mangalore Port Trust for 3 years i.e. 01.04.2000 to 30.09.2003 without payment of service Tax. Assessee has not obtained service tax registration & also not intimated the Department regarding the receipt of rentals. On a survey conducted by the department the same was found out. Thereafter, assessee took registration on 15.09.2003 and for the period from 01.04.2000 to 30.09.2003, filed “Nil” return on 30.12.2003.
 
The Department issued the show cause notice demanding the amount of service tax, interest on that amount and proposed to impose equal penalty under Section 78. The assessee paid service with interest and Rs. 500/- as penalty and filed the required ST-3 Return.
 
The Adjudicating Authority took note of payment of service tax by assessee but imposed equal penalty of Rs. 24581/- under Section 78 of the Finance Act, 1994.
 
In appeal, the Commissioner (Appeals) affirmed the order of the Adjudicating Authority.
 
In further appeal, the Tribunal took into consideration the fact that the service was exempted from payment of service tax from 01.03.1999 as per Notification no. 03/99-ST dated 01.03.199 which was reintroduced from 01.04.2000, which was not known to the assessee who is a household lady; that she had held a bonafide belief that there was no service tax payable on the taxi services. The port trust which was her client also did not inform her about the re-introduction of service tax w.e.f. 01.04.2000. Immediately on the receipt of notice the assessee had paid the tax. Therefore, the Tribunal took a lenient view and held that there is no willful evasion of duty. Accordingly, penalty imposed was set aside.
 
Against the order of the Tribunal, Department was filed appeal before the High Court.
 
Appellant’s Contention:- Department submitted that after obtaining registration, assessee had filed a false return showing that no tax is payable. Assessee has paid the Service Tax+Interest+Penalty only after receiving SCN. So it cannot be said that it is not a case of willful evasion of duty.
 
Respondent’s Contention:- Assessee submitted that she is being a lady and a house wife, has omitted to pay tax which is bona fide act on her part and therefore, when the Tribunal has taken a view in its discretion, such an order need not be interfered with. It was also submitted that immediately after she received the show cause notice, she has not only paid the tax but also paid interest and penalty.
 
Reasoning of Judgment:- The High Court held that the assessee had not paid the Service Tax on the rent-a-cab services provided by her for a period of 3 years after the re-introduction of service tax. When a survey was conducted, it came to Department’s notice as well as to the notice of the assessee. When once she got herself registered, any reasonable enquiry would have disclosed that she was liable to pay tax and that she has not paid the tax and minimum that expected of her was to file a return, pay tax with interest and request for a waiver insofar as penalty is concerned.
 
The High Court further observed that in such circumstances, it was open to the authorities having regard to assessee’s bona fide conduct, waive imposition of penalty. When once she filed a NIL return and after service of show cause notice, she realised her mistake and paid tax with interest and penalty, that by itself did not constitute sufficient reason to give her exemption from payment of penalty under Section 73.
 
The High Court noted that this aspect has been completely missed by the Tribunal which was unduly influenced by the fact that the assessee was a lady. The Tribunal failed to notice that people who want to indulge in such malpractices, would purchase properties or carry on business in the names of housewives as their front and carry on the activities. Therefore authorities need not unduly worry about persons in whose names the vehicles stand, but they have to look at the substance of the case and find out if it is a case of willful evasion or bona fide error.
 
The High Court was satisfied that this was not a bona fide omission on the part of a housewife- a lady who willfully evaded service tax and suppression of fact. The Tribunal’s order is illegal and therefore set aside. Orders of the Adjudicating Authority and Commissioner (Appeal) imposing penalty under Section 78 upheld.
 
Reference answered in favour of Department and against the assessee.
 
Decision:- Appeal allowed. 

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