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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 Laws/2012-13/1322

Whether assessee liable for penalty when service tax and interest promptly deposited on pointing by department ?


Case:-             ADANI PORTS & SPECIAL ECONOMIC ZONE LTD Vs COMMISSIONER OF SERVICE TAX, AHMEDABAD
 
CITATION:- 2012-TIOL-1509-CESTAT-AHM
 
Brief Facts:-The Appellant are engaged in providing Port services. Proceedings were initiated against the appellants on the ground that they are liable to pay service tax on commercial charges paid by them for availing External Commercial Borrowings under “Banking and Other Financial Services”. Appellants paid the service tax with interest and informed the Investigating Agency (DGCEI). Thereafter proceedings were initiated against the appellants which has culminated in the impugned order whereby the amount paid by the appellants towards Service Tax and interest have been appropriated and penalties under various sections of Finance Act, 1994 have been imposed. Appellant has filed appeal before tribunal for penalties to be set aside.
 
Appellant Contentions:-The ld. Advocate submitted that there was no dispute about the liability of service tax. In view of the fact that whatever amount paid by them as service tax was available to them as Cenvat Credit which would be used for payment of service tax liability on them, he submits that there was no intention to evade tax, and therefore, extended period could not have invoked. Nonetheless, they are not disputing the liability. He relied upon decision of the Tribunal in the case of ESSAR STEELS LTD. 2009 (13) STR 579 Tri.-AHMD= 2008-TIOL-2048-CESTAT-AHMD to submit that in such a situation no penalty is imposable. The ld. Advocate also submits that Service Tax on ECB was not paid because there was restructuring in the finance department of the company and the officers who were responsible for handling ECB transactions and new officers sought consultant’s opinion and officers did not pay the Service Tax. He submits that confusion arose because of decision taken in the Head Office which was not known to the unit receiving the service and that there was no intention to evade Tax, since whatever Service Tax paid was available as credit.
 
Respondent Contentions:-The Respondent submits that the appellants received service limiting to External Commercial Borrowings and were liable to pay Service Tax as a recipient but appellant has not paid service tax and not taken registration and no intimation given to the department and for this reason penalty is imposable on appellants.
 
Reasoning of Judgment:-The Tribunal has perused the submissions made by both sides. Tribunal finds that there is no dispute that appellants were eligible for CENVAT credit for the amount paid as Service Tax, and therefore this is a situation which was revenue neutral and by not paying Service Tax immediately, appellants have lost more than Rs. 26,00,000/- paid by them as interest which would not have become payable if service tax was paid promptly and taken as credit. In such circumstances, no service recipient would evade payment of service tax and become liable to pay interest which cannot be taken as interest. Therefore, it cannot be said that there was mis-declaration or suppression in the actions of appellant rendering them liable to penalty under various sections of the Finance Act. Tribunal further submits that demand itself is time barred since extended period could not have been invoked. However, since appellants are not contesting demand and interest paid by them, confirmation of demand for service tax and interest thereof has been upheld but penalties have to be set-aside.
 
Therefore, the appeal is allowed to the extent of penalties imposed on the appellant under various sections of the Finance Act which are set aside.
 
Decision:-Appeal allowed.
 
Comment:The analogy drawn from this case is that penalties cannot be imposed when there was no malafide intention on the part of the assessee to evade payment of duty and there was no suppression of facts. The appellant would not have defaulted in payment of service tax in this case if there was no confusion regarding service tax liability and as the service tax paid by him would be available as credit, the case was revenue neutral and did not warrant imposition of penalties.

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PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
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Fax No. :0291 - 2439496


Branch Office : -

Address:
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NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
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Mobile No. :
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E-mail :pradeep@capradeepjain.com