Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/CASE LAW/2015-16/2991

On short payment of service tax and Excess availment of Cenvat credit by the assessee, whether penalty imposed?

Case-THAI AIRWAYS INTERNATIONAL PUBLIC CO. LTD. VersusC.S.T. (ADJN)., NEW DELHI

Citation-2015 (38) S.T.R. 999 (Tri. - Del.)

Brief Facts-The appellant is in appeal against the impugned order for imposition of penalty under Section 78 of Finance Act, 1994 and under Rule 15(3) of the Cenvat Credit Rules, 2004 read with Section 77 of the Finance Act, 1994 and penalty under Rule 15A of Cenvat Credit Rules, 2004.The facts of the case are that audit was conducted during the period 21-1-2010 to 3-2-2010. It was found that during the period May, 2006 to March, 2007, the appellant made short payment of Service Tax of Rs. 7,18,001/-. It was also found that during the period June, 2006 to March, 2007, the appellant was entitled to take 20% of the Cenvat credit of Service Tax paid for providing outward exempted service, but they have availed 100%, on that count, they have taken excess Cenvat credit of Rs. 23,71,100/-. On pointing out by the audit team, the whole of the amount was paid by the appellant during the period March, 2010 to June, 2010 along with interest and intimated to the department on 8-6-2010. Thereafter, the show cause notice was issued for appropriation of the amount paid by the appellant along with interest and for imposition of various penalties under Finance Act and for violation of Cenvat Credit Rules. The appellant is not disputing their liability of Service Tax along with interest. They are only contesting the imposition of penalty on the premise that as they have paid the entire Service Tax along with interest on pointing out by the department. Therefore show cause notice was not required to be issued as per Section 73(3) of Finance Act, 1994.

Appellants Contention-The contention of the learned Consultant for the appellant is that as the appellant has committed bona fide mistake, as in the case of demand of Service Tax of Rs. 7,18,001, in some cases appellant has paid excess amount of Service Tax and in some cases, short payment. Therefore, it was inadvertent mistake committed by the appellant and there was no mala fide intention for the appellant to make short payment of Service Tax. For the demand of Rs. 23,71,100/-, it is the contention of the learned consultant that the appellant was not knowing the provision of Cenvat credit which is restricted to 20% in case of outward exempted service. Therefore, the benefit of Section 80 of the Finance Act is to be given to the appellant and penalty to be dropped.

Respondents Contention-On the other hand, learned AR opposed the contention of the learned Consultant and submits that if the audit would not have conducted in the premises of the appellant, the truth could not have unearthed. The appellant could have enjoying the short payment of Service Tax and availing inadmissible Cenvat credit. Therefore, the penalties are rightly imposed on the appellants.

Reasoning of Judgement-Heard both sides. Considered the submissions in detail. On perusal of the record, tribunal find that appellants in some cases made the excess payment in some cases and in some cases paid short payment. It might be on account of calculation errors but same is not coming out from the facts but it is a fact that excess Service Tax has been paid and in some cases, short Service Tax has been made, therefore, I hold that it is inadvertent mistake committed by the appellant. In these circumstances, the benefit of Section 80 of the Finance Act is to be given to the appellant and therefore, penalty on this count for Rs. 7,18,001/- is set aside. Further, for availment of inadmissible Cenvat credit of Rs. 23,71,100/-, They find that appellant is entitled to take Cenvat credit only up to 20% of Cenvat credit. In the case of Service Tax for outward exempted service, it is the admission of the appellant that they are not maintaining separate accounts. Therefore, they are not entitled to take Cenvat credit more than 20%. Further they find that if the audit had not been conducted in the premise of the appellant, this fact would not have come in the knowledge of the department, therefore, they hold that on these count, appellant is liable to be penalized. As appellant has paid entire amount of Service Tax along with interest before issuance of show cause notice, therefore penalties are restricted to 25% of the Service Tax involved. In these terms, appeal is disposed.
 
Decision-Appeal disposed of

Comment-The substance of the case is that as in the given case the assessee has made Excess and short payment of service tax due to the inadvertent mistake or on account of calculation errors and he is eligible for the benefit of Section 80 of Finance Act, 1994. And, therefore the requirement of penalty imposed vide section 77 shall also be waived. further issue which is as regards to the inadmissibility of excess Cenvat credit taken. Since the assessee is providing outward exempted service but not maintain separate accounts the assessee is not entitled to take Cenvat credit more than 20%.But according to the facts provided in the given case that 100% credit disclosed by audit conducted in assessee’s premises, assessee is liable to be penalized. But since the assessee paid entire amount of Service Tax along with interest before issuance of SCN the penalty should be restricted to 25% of Service Tax involved which is in accordance with the Rule 15 of Cenvat Credit Rules, 2004.
 
Prepared By-Neelam Jain
 

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