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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/2015-16/2899

Whether assessee liable to be penalizedfor non-payment of service tax already collected from customer?

Case:- KETAN ENGINEERING SERVICES PVT. LTD. VERSUS COMMR. OF C. EX. & S.T., SURAT

Citation:- 2014 (36) S.T.R. 196 (Tri. - Ahmd.)

Brief Facts:-This stay application and appeal has been filed by the appellant with respect to Order-in-Original No. SUR-EXCUS-001-COM-044-13-14, dated 31-12-2013 passed by Commissioner, Surat-I. Under this order-in-original, adjudicating authority confirmed service tax amount of Rs. 99,86,617/- along with interest and appropriated the payments made by the appellant towards duty and interest. In addition, penalties were also imposed upon the appellant under Section 77 and Section 78 of the Finance Act, 1994. Appellant has only contested imposition of penalty of Rs. 99,86,617/- under Section 78 of the Finance Act, 1994 on the grounds that the entire payment of tax and interest were made much before the issue of show cause notice.

Appellants Contention-Shri Birju S. Shah, Chartered Accountant appeared on behalf of the appellant and argued that in view of the following case laws appellant has a strong case for non-imposition of penalties :-
(a)       Warna Industries Limited [2006 (4) S.T.R. 535 (Tri.-Mum.)]
(b)       M.D. Engineers [2013 (30) S.T.R. 389 (Tri.-Ahmd.)]
(c)       Lynx Communication Systems Pvt. Limited [2013 (31) S.T.R. 331 (Tri.-Ahmd.)]
(d)       M.R. Coating Pvt. Limited [2013 (30) S.T.R. 76 (Tri.-Ahmd.)]
(e)       Atwood Oceanics Pacific Limited [2013 (32) S.T.R. 756 (T.-Ahmd)]
(f)        Bhoruka Aluminium Limited [2008 (11) S.T.R. 163 (Tri.-Bang.)]
(g)       U.B. Engineering Limited [2009 (15) S.T.R. 200 (Tri.-Ahmd.)]
(h)       Auto Transport Services [2006 (3) S.T.R. 330 (Tri.-Del.)]
(i)        Super Star Security Services [2013 (30) S.T.R. 700 (Tri.-Chennai)]
(j)        Oriental Steel Trunks Agrico Inds. [2011 (23)S.T.R.212 (Ker.)]
 
Respondents Contention:-Shri S.K. Mall (AR) appearing on behalf of the Revenue argued that appellant had collected the entire service tax from the service recipients and retained the same with them. No ST-3 returns were filed during the prescribed period so that Revenue could detect any short-payment/non-payment of service tax. It was his case that as the appellant was a registered unit and has recovered the service tax from the customers therefore, penalty under Section 78 of the Finance Act, 1994 was correctly imposed.
 
Reasoning Of Judgement:-Heard both sides and perused the case records. Appellant has only contested the imposition of penalty under Section 78 of the Finance Act, 1994. As the issue involved lies in a narrow compass, therefore, after allowing the stay application, appeal itself is taken up for disposal. It is observed from the facts available on record that the entire service tax payable was recovered by the appellant from the service recipients. Appellant was a registered unit and was well aware of their liability to pay service tax to the Revenue. Even if there was any financial difficulty, appellant was required to file the periodical returns indicating therein the correct service tax liability. Had the appellant filed such returns showing correct duty liability, which he had already recovered, may be appellant’s bona fides could have been accepted. In the present case, appellant recovered the entire service tax from their customers and also did not file periodical prescribed returns with the Revenue. Non filing of returns and non-payment of service tax, in spite of collecting the same from the customers, clearly convey mala fide on the part of the appellant making them liable to penalty under Section 78 of the Finance Act, 1994. The case laws relied upon by the appellant does not pertain to a situation when service tax was recovered by the appellant and deliberately not paid to the Revenue. The facts of the relied upon case laws are different than the facts of the present proceedings and are not applicable. In view of the above observations, appeal filed by the appellant is rejected.

Decision:-Appeal rejected.

Comment:- The crux of the case is that thenon-filing of returns and non-payment of Service Tax in spite of collection from customer clearly convey the mala fide intention of the assessee and henceforth he is liable to be penalized under Section 78 of Finance Act, 1994. The plea that no penalty should be imposed as service tax along with interest was paid before issuance of show cause notice was rejected as there was no bonafide intention of the appellant.

Prepared By:- Neelam Jain
 

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