Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
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.  

Comments

Print   |    |  Comment

PJ/Case Law /2016-17/3306

Whether penalty to be imposed for short payment of Service Tax under GTA under bona fide belief of its non inclusion in gross value?  

Case:-ROHIT STEEL Versus COMMISSIONER OF SERVICE TAX CELL, HQRS., NAGPUR

Citation:-2016 (43) S.T.R. 403 (Tri. - Mumbai)                      

Brief facts:-This appeal is directed against Order-in-Appeal No. PVR/285/NGP/2013, dated 24-5-2013 passed by the Commissioner (Appeals) of Central Excise & Customs, Nagpur, wherein Ld. Commissioner (Appeals) upheld the demand of Rs. 3,21,351/- which was accepted by the appellant and paid along with interest. The appellant filed this appeal only for waiver of penalty imposed under Sections 76 & 78 of the Finance Act, 1994.

Appellant’s Contention:-Shri Madhao Vichore, ld. CA appearing on behalf of the appellant submits that appellant has admittedly paid the entire amount of Service Tax of Rs. 3,21,351/- out of which an amount of Rs. 1,68,366/- was paid on due date and declared in the ST3 returns and same was not part and parcel of show cause notice demand, only short paid amount was Rs. 1,52,985/- which was also paid on 15-6-2012 along with interest i.e. before the passing of Adjudication Order. He submits that the appellant is registered dealer of trading of steel items and recipient of transport service. They are paying service tax on reverse charge basis. They have been paying regular service tax on GTA, however due to non-inclusion of Miscellaneous Charges like Hamali, loading/unloading, carting and octroi etc. this short payment has occurred therefore there was no intension to evade service tax. The entire transaction recorded in the books of account and this discrepancy was pointed out by the audit party only from the verification of books of account of the appellant. In view of this fact appellant should not have been imposed penalty under Sections 76 and 78 as there was reasonable cause of non-payment of service tax.

Respondent’s Contention:-Shri S.L. Karoliya, ld. Asstt. Commissioner (AR)appearing on behalf of the Revenue reiterates the findings of the impugned order.

Reasoning of judgement:-The Tribunal carefully considered the submissions made by both the sides and perused the record.
The Tribunal foundthat in the present case, short payment of service tax is only of an amount of Rs. 1,52,985/- which was admittedly paid along with interest by the appellant before passing the Adjudication order. As per the submission of the appellant, the appellant was registered as dealer for passing of the Cenvat credit as well as registered under the service tax. They were paying service tax regularly and filing ST3 returns. Short payment has occurred due to the reason that the appellant under bona fide belief that Misc. Charges such as Hamali, loading/unloading, carting and octroi etc. are not includible in the gross value of the GTA and accordingly amount of such charges got escaped from payment of service tax. The Tribunal also found that the appellant have correctly recorded the entire transaction of transportation, Hamali, loading/unloading, carting and octroi etc. in their books of account and discrepancy was admittedly pointed out during audit of the appellant’s books of account. The appellant on pointing out short payment admittedly paid the service tax along with interest. In view of this fact, the Tribunal observed that appellant has been able to show reasonable cause for non-payment of service tax on due date. In the circumstances, the Tribunal is of the view that appellant has made out the case for waiver of penalty in terms of Section 80 of the Finance Act, 1994. The penalty under Sections 76 and 78 imposed by the Adjudicating authority and upheld by the first appellate authority are waived invoking Section 80 of the Finance Act. The short paid service tax was paid along with interest, the said payment is maintained. Appeal is allowed in above terms.

Decision:-Appeal allowed

Comment:-The gist of the case isthat in this case where appellant had made short payment of Service Tax under GTA by not including miscellaneous expenditures like Hamali, loading/unloading, carting and octroi under bona fide belief of their non-inclusion in gross value, there was no malafide intention. As the entire unpaid tax was paid by the appellant subsequently along with interest prior to issuance of adjudication order, penalty was waived in accordance with Section 80 of Finance Act, 1994.

Prepared by:- Praniti Lalwani

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