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Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

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PJ/Case Law/2013-14/1973

No penalty imposable if assessee has deposited service tax along with interest before issuance of SCN.
Case:-KANDLA EARTH MOVERS VersusCOMMISSIONER OF CENTRAL EXCISE, RAJKOT
 
Citation:-2013 (30) S.T.R. 622 (Tri. – Ahmd.)

Brief facts:-During the course of audit of the records of the appellants, it was found that the appellants had taken credit of additional duty of customs revisable under Sec. 3(5) of the Customs Tariff Act, 1985 and utilized the same for payment of service tax for output services. Availment of credit utilization happened in the year 2007-08 and audit of the records was conducted in April, 2011. Thereafter show-cause notice was issued proposing recovery of the credit wrongly availed with interest and imposition of penalty. In the meantime, appellants paid service tax and interest. In the appeal, appellant is not contesting the liability of service tax and interest, but only contesting the imposition of penalty.
 
Appellant’s contention:-The ld. Counsel on behalf of the appellants submitted that in this case the appellants had paid service tax availed by them with interest on 6-9-2011 and on finding that there was some mistake in calculating the interest; they paid the balance amount in November, 2011.The ld. Counsel submitted that the show-cause notice was not received by them before making the payment. It was further submitted that service tax liability with interest had been discharged before receipt of show-cause notice and therefore the appellant is squarely covered by provisions of Sec. 73(3) of the Finance Act, 1994, which provides that in case the assessee pays full amount of tax with interest, no show cause notice shall be issued if there is no suppression or misdeclaration. He further submits that in this case, there was no intention to evade or avail wrong credit, but it was a bona fide mistake on the part of the clerk who was looking after the work. This submission is supported by the fact that before receipt of show-cause notice, appellants had paid service tax and interest and once such amount is paid, proper action is to be taken to check the correctness of the amount paid and inform them about the same for which period of one year as provided in the statutory provision. Therefore, as soon as they were informed, the interest was paid and balance amount was also paid in November, 2011. He submits that in view of the facts, appellants paid the money without challenging the same even though the audit party had pointed out the availment of credit before more than one year and appellants could have challenged the demand on the ground of limitation, appellants did not want to challenge denial of credit on technical ground to avoid discharging the liability of service tax and therefore paid Cenvat credit of Rs. 2, 09,475/- with interest of Rs. 1,47,000/-. He also submitted that under these circumstances imposition of penalty is not called for and appellant’s case is covered by Sec. 73 of the Finance Act, 1994.
 
Respondent’s contention:-The ld. AR submitted that the appellants did not pay full amount before the issue of show-cause notice. The show-cause notice was issued on 2-9-2011 and therefore, penalty has to be upheld.
 
Reasoning of judgment:-On going through the records and considering the submissions, commissioner found that audit was conducted in April, 2011; appellant paid Cenvat credit taken with interest on 6-9-2011; show-cause notice is dated 2-9-2011; show-cause notice was signed on 4-9-2011. Under these circumstances, claim of the ld. Counsel that payment was made before receipt of show-cause notice can be accepted. Next question that arises is whether intention to evade payment of duty can be sustained and extended period could have been invoked in this case or not. The ld. Counsel submitted that this was a mistake on their part to have availed the credit. The concerned clerk made a mistake and when the audit party found it after four years they have paid the amount voluntarily with interest which is also substantial.
On going through the records, it was found by commissioner that the original authority has sustained the extended period on the ground that the appellant had paid wrongly availed Cenvat credit after issue of show-cause notice only and, therefore, extended period is invocable. The Commissioner (A) has taken the view that the appellant is working under self-assessment scheme and he is bound to be honest in taking credit and discharging liability. Further he observes that the department has reason to believe that the appellant has done this with sole intention to avail undue benefit of Cenvat credit. The submission that appellants had filed return and shown all details of credit had not at all been considered and dealt with. Further, factually also, observations of the original authority that the amount was not paid before issue of show-cause notice which is the sole ground for invoking extended period is also not correct when various dates relevant to the issue are considered. If the appellant had intentionally taken the credit, they need not have paid the amount before the issue of show-cause notice but waited for show-cause notice to be issued and challenged the same on the ground of limitation thereafter. The very fact that the appellant paid the amount before issue of show-cause notice and when it was found that interest liability was not fully discharged, they paid the balance, in commissioner’s opinion, would go in favour of the appellants. Having regard to the facts and circumstances discussed above and after considering the records, it was found that this was not a case for invoking extended period for imposition of penalty. In view of the above discussion, penalty imposed on the appellant is set aside and demand for wrongly availed Cenvat credit with interest is upheld as not challenged.
 
Decision:- Appeal allowed.
 
Comment:- The substance of this case is that when it is observed that service tax along with interest has been paid before issuance of SCN and no fraud can be attributed then levy of penalty is not justifiable and is not warranted.
 

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