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/2013-14/1609

Provisions of section 80 applicable in case of bonafide belief.

Case:-VASCON ENGINEERING PVT LTD Vs C.C.E., CHANDIGARH
 
Citation:-2013-TIOL-838-CESTAT-DEL
 
Brief Facts:- Brief facts of the case are that the assessee is registered for service tax under "Commercial and Industrial Construction" and "Residential Complex Construction Service' with effect from 10.9.2004 and 16.6.2005 respectively. It was observed by the department that assessee received an amount on account of Maintenance and Repair of immovable property of their client M/s Cipla Ltd., Baddi during the period May 2006 to December 2006. It was contention of the Department that services provided by the assessee falls under Category of Management, Maintenance and Repair service and is taxable with effect from 1.5.2006. Abatement of 67% of taxable value availed by the assessee under Notification No. 1/2006 dated 1.3.2006 is applicable to Commercial and Industrial Construction Service only and not to Management, Maintenance and Repair service. Accordingly, a Show Cause Notice demanding service tax short paid by them was issued. Notice was adjudicated by Joint Commissioner who vide his Order-in-Original confirmed the service tax along with interest. Penalties under Section 76 and Section 78 were also imposed on the assessee. Assessee filed an appeal before Commissioner (Appeals) who vide the impugned order set aside the penalty imposed under Section 76 of the Act and penalty imposed under Section 78 of the Act was reduced to 25% of tax amount. Assessee has challenged this order before this Tribunal in the present appeal. Revenue has also challenged the impugned order on the ground of reduction of penalty.
 
Appellant’s Contention:- The appellant submits that they are engaged in activity of construction of buildings and are covered under Commercial and Industrial Construction service and also doing repairs of buildings. Repairs of building is covered under Section 65(25) of the Finance Act and not under 65(64) of the Act as contested by Revenue. He fairly submits that since amount is small and they have paid the service tax along with interest as early in Feb. 2008, they are not contesting service tax but there is no case for imposition of penalty on them. He submits since there are two interpretations about classification of service under 65(25b) and 65(64) there is reasonable cause for failure of payment of service tax and benefit of Section 80 of the Finance Act is applicable to them.
 
 
Respondent’s Contention:- On the other hand, ld. DR submits that original authority has rightly imposed the penalty equal to tax amount and it was not proper for Commissioner (Appeals) to reduce it to 25% of tax amount.
 
Reasoning of Judgment:- After hearing both sides, we find that assessee was paying service tax under category of Commercial and Industrial Construction and Residential Complex Construction Service prior to 1.5.2006. Service tax on maintenance and repairs was also being paid by them under Section 65(25) of the Finance Act after availing abatement of 67% under Notification No. 1/2006 dated 1.3.2006, Revenue demanded service tax short paid by them under Maintenance and Repair under Section 65(64) of the Finance Act. As ld. Advocate for assessee not contesting the demand of service tax as amount is small and tax along with interest already paid by them, we are not going into question of classification of Maintenance and Repair activity involved in this appeal.
 
We find that assessee was under bona fide belief that maintenance and repair of building was covered under Section 65(25)(b) and service tax was being paid by them. We are therefore of the view that there is reasonable cause for not paying service tax short paid by them and benefit of Section 80 of the Finance Act 1994 is available to the assessee. Accordingly, we set aside the penalty confirmed by the Commissioner (Appeals) and consequently reject the Revenue's appeal.
 
Decision:- Revenue's appeal is rejected and assessee's appeal is allowed in respect of penalty only.
 
 
Comment:- The essence of this case is that if short payment of service tax was on account of bonafide belief and  the said short payment was paid along with interest, then the benefit of Section 80 of the Finance Act 1994 will be available to the assessee.

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