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/2013-14/1644

Penalty under section 78 set aside on the ground of revenue neutrality.

Case:- M/s KANCHAN INTERNATIONAL LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, DAMAN

Citation:-2013-TIOL-1014-CESTAT-AHM

Brief Facts:-This appeal is directed against Order-in-Appeal No.CS/118/DMN/SDMN/2011-12, dt.30.11.11.

The facts of the case in brief are that the appellant M/s. Kanchan International Limited (Unit-II), is engaged in the manufacture of Pressure Cooker and Non Stick Utensils falling under Ch. 73 & 76 of the Central Excise Tariff Act, 1985 and holding Central Excise Registration No.AMCK2599XM003. The unit also obtained Service Tax Registration No.AAACK2599ST003 for the category "Transport of goods by Road Services". They are availing the facility of Cenvat credit as per Cenvat Credit Rules, 2004. During the course of EA-2000 Audit, it was noticed by the department that during the period of 2005-06 to 2008-09, the unit paid Rs.5,14,060/- as commission for sales of their export goods and also paid Rs.3,66,394/- for advertisement charges to foreign firms viz. the person from country other than India. Audit raised an objection that the unit being the recipient of such service, therefore, is liable to pay service tax under reverse charge. Accordingly a show cause notice dated 29.04.2010 was issued demanding service tax of Rs.98,223/- under Section 73(1) along with interest under Section 75, proposed penalty under Section 76, 77 & 78 of the Finance Act, 1994 by invoking extended period.
The demands were confirmed by the adjudicating authority by upholding the service tax liability of Rs.50,536/- along with interest and also penalties under Section 76, 77 & 78 of the Finance Act, 1994.

Aggrieved by such an order appellant preferred an appeal before the first appellate authority. The first appellate authority also did not agree with the contentions raised by the appellant and upheld the order-in-original. Hence, the present appeal.

Appellant Contentions:-The appellant submitted that they are not challenging the service tax liability. It is his submission that the service tax liability has arisen on the appellant under the reverse charge mechanism for the commission paid on export sales and for engaging advertising agency in Hong Kong for advertisement of their products; and question of revenue neutrality will arise, in as much as that the service tax liability which will be discharged by the appellant would be available as cenvat credit, as they are manufacturing final products on which excise duty is leviable. It is also his submission that since the issue involved in this case was under dispute, and had to be decided by the Hon'ble High Court of Bombay in the case of Indian National Ship Owners' Association - 2009 (14) S.T.R. 289 (Bom.) = (2009-TIOL- 150-HC-MUM-ST), hence bonafide belief also arises in the appellant's favour. It is his submission that there was a confusion as regards the services availed by the appellant and it could be termed as an importer of service into India. It is his submission that the service tax imposed on the appellant be set aside.
Respondent Contentions:-The respondent submitted that the appellant has not brought to the notice of the department regarding the payment of commission on export sales as well as the advertising expenses incurred by him at Hong Kong are for the marketing of their products. It is his submission that if appellant was in doubt, he could have got in touch with the department and could have got matters clarified, having not done so, he is not eligible to the benefit of revenue neutrality. It is his submission that the adjudicating authority had extended the benefit of discharge of penalty of 25% of the amount of service tax liability confirmed by the adjudicating authority under Section 78 of the Finance Act, 1994.

Reasoning of Judgment:-We have considered the submission from both parties and perused their record, we find that the appellant has accepted the service tax liability but has discharged the service tax liability only of Rs.45,286/- after the issuance of show cause notice along with interest. But has not paid the service tax liability of Rs.5,250/-.

As regards the penalty imposed under Section 76 on this amount of Rs.5,250/-, we find that the same needs to be set aside.

As regards the service tax liability of Rs.45,286/-, it is found that the appellant has discharged the entire amount of service tax liability with interest after the issuance of show cause notice but before the adjudication. As the adjudicating authority has already appropriated this amount it is found that the imposition of penalty under Section 76 on the appellant on this amount is incorrectas the said service tax liability has arisen on 16.01.09. Hence penalty imposed under Section 76 on this amount is liable to be set aside.

As regards the equivalent amount of penalty imposed under Section 78 on the said amount, it is found that appellant's contention as to the revenue neutrality is on a strong wicket, in as much as it is undisputed that the appellant is manufacturing the final products on which excise duty liability is discharged. The appellant can avail the cenvat credit on the amount of service tax paid by him under reverse charge mechanism. Tribunal finds that the revenue neutrality is a strong ground which can be taken for setting aside the imposition of penalty. Tribunal finds that the appellant has made out a case for setting aside the penalty imposed under Section 78, on the ground of revenue neutrality and accordingly set aside the penalties imposed by the lower authorities under Section 78 on tax liability of Rs.45,286/-. It is recorded that the appellant is liable to discharge interest on all the amounts which is not paid till date. As regards the imposition of penalty under Section 77, it is found that the said penalty needs to be upheld in this case.

Decision:-The appeal is disposed of on above terms.

Comment:- The substance of this case is that as the situation was revenue neutral, as the service tax paid under reverse charge mechanism was available as credit to the assessee manufacturer, penalty under section 78 was set aside.

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