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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/2012-13/1518

Whether penalty can be waived where full service tax liability was discharged before issue of SCN?

Case:-M/s Endeka Ceramics India Pvt Ltd Vs Commissioner Of Central Excise, Surat-II
 
Citation:-2013-TIOL-497-CESTAT-AHM
 
Brief facts:-During the course of visit of the Jurisdictional Assistant Commissioner, it was noticed that the some foreign engineers were available in the unit and providing the Engineering/Testing Consultancy in setting up of machinery installed/being installed in their factory premises. The matter was discussed by the said Central Excise officer with the representatives of the appellant and he guided them for the liability of service tax. Therefore the appellant vide their letter dated 20.05.2008 furnished a challan dated 10.05.08 related to payment of service tax amounting to Rs.1,15,13,250/- in respect of services received during the period 16.05.07 to 28.02.08. Further, the appellant were asked vide letters dated 19.06.08 and 17.07.08 to furnish details regarding the services received, value thereof and status of service tax liability thereupon and relevant documents viz. invoices etc. The appellants in response to the letters issued to them, submitted reply vide their letters dated 24.06.08, 16.07.08, 28.07.08 and 4.9.08. From the details and documents furnished by the appellant, it appeared that they had not paid the amount of service tax amounting to Rs.21,76,361 /- leviable on the engineering consultancy services received by them during the period 2007-08 and 2008-09 ( upto 31.07.08). The appellant paid the service tax amounting to Rs.21,76,361 /- vide challan dated 10.05.08 of Rs. 14,23,038/, challan No.06 dated 26.07.08 of Rs.1,37,359/- & challan No.08 dated 25.08.08 of Rs.6,15,964/-. Thereafter proceedings were initiated by issuing a show cause notice proposing to appropriate the service tax and interest paid towards the liability of the appellant and also proposing to impose penalty under Section 77 & 78 of Finance Act, 1994. After adjudication proceedings and appeal proceedings wherein the service tax paid with interest has been confirmed and appropriated and penalties under Section 77 & 78 have also been imposed. As regards liability to service tax, there is no dispute and the only issue involved is whether this is a fit case for application of provisions of Section 73(3) of Finance Act, 1994 which provides for waiver of penalty where the amounts are paid before issue of show cause notice or invocation of provisions of Section 80 of Finance Act, 1994 which provides for waiver of penalties where an assessee is able to show reasonable cause for failure to discharge the liability. After hearing both sides, Tribunal came to the conclusion that the matter itself can be finally decided since the dispute is only regarding penalty. Accordingly, the requirement of pre deposit was waived and appeal itself was taken up for final decision.
 
Appellants contention:-The ld. counsel submitted that the Assistant commissioner had visited the appellants when they were yet to start their operations. The services received were for construction of plant and machinery as consulting engineers and therefore the service had been received even before commencement of commercial operations. He submits that during the time when commercial operations had not started, they did not have qualified staff to look after these aspects and when the Assistant Commissioner pointed out, appellants found that they were liable to pay and the first payment was made in February 2008 for all the amounts paid by them to the foreign service provider up to that date.
 
Respondents Contention:-The contention of the Revenue is that appellant had not taken service tax registration and but for the visit of the Assistant Commissioner, appellants may not have paid the service tax at all. It has also been observed by the lower authorities that even after it was pointed out appellants took some time to pay the amount.
 
Reasoning of judgement:-Tribunal held that the Assistant Commissioner had visited the unit before the commercial operations had started and advised them to pay which was readily accepted. This coupled with the fact that appellants did not have qualified staff and they paid the service tax after the amounts were paid by them for the services received from time to time discharged the liability in full which is not in dispute and would show that extended period could not have been invoked in this case. Moreover entire duty liability was discharged by July 2008 which is less than nine months from the visit of the officer which would again show that the payment was made promptly without any delay. Having regard to these facts and having regard to the fact that appellant was eligible for cenvat credit, it observed that this was a case where provisions of Section 73(3) was applicable and no show cause notice should have been issued. Further it is also found that this is a case where appellants have been able to show reasonable cause for non payment of the tax even if it is assumed that there was delay in payment in view of the revenue-neutral situation and lack of availability of qualified staff. In view of the same, the penalty imposed is set aside.
 
Decision:-Appeal was allowed.
 
Comment:-The substance of this case is that penalty is not imposable when the service tax demand along with interest was paid promptly, and that too before issuance of show cause notice in view of the provisions of section 73(3) of the Finance Act, 1994.

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