Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  The GSTN has issued an Advisory dated 21.04.2026 about the introduction of an Offline Tool for the Invoice Management System (IMS)  *  CBIC extends due dates for filing of FORM GSTR 3B  for the month of April 2026 *  Interest cannot be imposed in adjudication order, if not demanded/quantified in show cause notice : Allahabad HC *  Wheelchairs with toileting facility eligible for exemption: CESTAT affirms customs duty exemption to importer *  Industries urge GST council to allow inverted duty refunds on input services *  Tamil Nadu GST dept introduced virtual hearing facility for GST appeals under under section 107 of the TNGST act: detailed guidelines  *  CIC urges authorities to implement GST evasion complaint tracking system *  Even if the assessee opts "NO" for personal hearing in form DRC-06 ,The mandatory requirement under section 75(4) to grant opportunity of hearing cannot be waived:Gujarat High Court  *  Glufosinate imports curbs imposed by govt *  Government extends Re-import period for exported cut & polished diamonds *  CIC flags lack of tracking system for tax evasion complaints,urges GST authorities to improve transparency *  No Custodial Interrogation needed in GST fraud case based on documentary evidence already in Department's Possession : Chattisgarh HC *  Orders under section cannot be sustained if passed without considering the taxpayer's objections and without granting a personal hearing:Gujarat High Court *  Mere cancellation of supplier's registration cannot,by itself,justify denial of ITC or cancellation of the recipient's registration:Bombay High Court *  High Court sets aside GST notice citing factual errors and natural justice violations *  Provisional Bank Attachment under Section. 110 of Customs Act Unsustainable Beyond Statutory period without Extension order: Bombay HC orders to defreeze accounts *  Post Clearance MRP Alteration by Distributor Does not attract Differential Customs Duty: CESTAT *  DGFT Expands scope of 'Screws' classification under RoDTEP Scheme  *  E-way bills surze to all time high of 140.6 million in March *  GST Exemption Allowed on Pure Labour Services for Standalone Houses: AAR  *  GST Payable Only on Margin in Second-Hand Car Sales, Subject to Strict Conditions and No ITC Claim: AAR *  DGFT rolls out procedure for allocation of calcined coke *  GST portal update : Pre-deposit amount now editable in Appeals *  J&K HC declared TMT scrap a 'Specified Good' eligibile for GST refunds under Support Scheme  *  Pigmy agents are employees of banks; no GST can be levied on commission  paid to them : Karnataka HC *  DGFT Revises HS Code Description for Screws Under RoDTEP *  GST Registration Cancellation Invalid Without Proper Service of Notice: Allahabad High Court. *  Bengaluru CGST | GST Backlog Appeals Deadline Fixed at June 30, 2026 *  No Time Bar on Refund of Service Tax for Services Not Rendered: CESTAT  Remands Indiabulls Case for Unjust Enrichment Check. *  Supreme Court Holds Renewable Energy Incentive Must Benefit Generators, Not Be Adjusted in Tariff
Subject News *   Delhi HC Quashes Order, Says Reminder Cannot Validate Improperly Served GST SCN *  KARNATAKA HIGH COURT REMANDS GST SHORTFALL MATTER DUE TO ABSENCE OF PERSONAL HEARING   *  CESTAT cancels confiscation and penalties on imported computer cabinet cases: Custom duty restricted to 111 surplus units *  Deposit of tax during search or investigation cannot be treated as 'Voluntary Payment' : Bombay High Court *  Section 76 of the CGST cannot be invoked where the tax has already been duly deposited, even if through another registration of the same entity: Madras High Court *  Sec 74 allows use of material regardless of source; illegality or flaws in section 67 search do not vitiate valid adjudication: HC *  Inter-State transfer of ITC on Amalgamation permissible as given under section 18(3) read with rule 41 of the CGST rules, 2017: Gujarat High Court *  HC: No GST on commisson paid to Pigmy Agents *  IGST refund denial on illegible bill of lading invalid absent chance to furnish docs; merit reconsideration in appeals directed: HC *  ITC is not admissible on GST paid on leasehold rights of land used fpr setting up an air seperation plant: AAAR,Tamil Nadu *  GST: No penalty under Section 74 after voluntary ITC reversal due to non-existent supplier : High Court *  TN AAAR denies GST ITC on Land Lease under Sec. 17(5)(d) for setting up plant and machinery *  GST proceedings quashed as notices sent to old address, despite updated address in registration *  Importer Can’t Be Penalised for Alleged IGCR Procedural Lapses Without Evidence of Departmental Error: CESTAT *  Structured Healthcare Training Not ‘Charitable Activity’, 18% GST Payable: AAR  *  CESTAT As The Appellate Authority For Central Sales Tax Disputes: A Paradigm Shift Under Finance Act, 2023 *   Rs. 25K Cost Imposed On SGST Joint Commissioner for Attaching Bank  Accounts Without Forming Mandatory “Opinion”: Bombay HC *   Ex-Parte GST Order Without Hearing Violates Natural Justice: Karnataka  High Court Quashes Adjudication and Bank Attachment.  *   Retrospective GST Cancellation Can’t Invalidate Genuine Transactions:  Jaipur Commissioner (Appeals) Quashes Rs. 95,670 ITC Demand. *   GST Pre-Deposit Non-Compliance: Allahabad High Court Allows Appeal  Subject to Rs. 30 Lakh Balance Deposit, Recognises Offline Filing. *  Documentary Nature of Evidence: Allahabad High Court Grants Bail in Rs. 32.66 Crore Fake ITC Fraud Case *  Supreme Court Flags Systemic Bias in Army’s Permanent Commission Process for Women Officers *  Re-Determination of Land Compensation Can Be Based on Appellate Court Awards, Clarifies Scope of S. 28-A: Supreme Court. *  Supreme Court Imposes Rs. 5 Lakh Costs On Rent Authority Officer For Acting Beyond Jurisdiction. *  DGGI Meerut | Court Denies Bail to Accused in Claiming Fake ITC And Export Refunds *  Denial of GST Rate Revision Benefit to Contractor Violates Article 14: Rajasthan HC *  GST Registration Cancellation for Non-Filing of Returns: Gauhati High Court Directs Restoration on Compliance. *   Supreme Court Quashes FEMA Adjudication Orders, Revives Proceedings at  Show Cause Stage. *   Higher Rank, Harsher Punishment Justified: Supreme Court Restores Dismissal  of Bank Manager in Misappropriation Case. *   Limitation for Export Refund to Be Counted from Foreign Exchange Realisation,  Not From Export Invoices Issuance: CESTAT  

Comments

Print   |    |  Comment

PJ/Case Laws/2012-13/1368

Whether penalty will be imposed when duty has been paid alongwith interest before issuance of show cause notice?

Case:-  C.C.E., INDORE (M.P.) VS. MUKESH JAIN
 
Citation:- 2012 (28) S.T.R. 277 (Tri.-Del.)
 
Brief Facts:-The respondent are a sub-broker. They had obtained Service Tax Registration and for sometime, filed S.T.-3 Returns. It appears that subsequently, they stopped paying service tax and filing service tax returns, till inquiry in respect of them was initiated in 2008 and their financial records were examined by the department, in course of which, it was found that they have not discharged the service tax liability for the period 2006-2007 to 2007-2008. The appellant, immediately after being pointed out, discharged their service tax liability for the period 2006-07 and 2007-2008 along with interest. However, subsequently, a show cause notice was issued to the Respondent for con­firmation of the service tax demand and also for imposition of penalty on them under Section 76 and 78, which was adjudicated by the Asstt. Commissioner.  While the Asstt. Commissioner confirmed the service tax demand along with interest and appropriated the amount already paid by the respondent, he refrained from imposing any penalty on the respondent under Sections 76 and 78 on the ground that no grounds exist for the same, as it is not a case of willful and deliberate evasion of service tax. The Asstt. Commissioner held that this case is covered by the provisions of Section 73(3) of the Finance Act and, hence, penalty under Section 76 and 78 is not called for. The department filed a review appeal to the Commissioner (Appeals) but the same was dismissed. Against  this order of the Commissioner (Appeals), while the department filed an appeal before  Tribunal, the respondent have filed a cross objection.
 
Appellant’s Contention:-The Revenuepleaded that inthis case though the re­spondent had obtained service tax registration in January, 2005, they were nei­ther paying service tax nor were filing any return, that non-payment of service tax was detected only in 2008, that after detection, the appellant paid the entire amount of service tax along with interest before issuance of show cause notice but this will not save them from the penal provisions of Section 76 and 78 inas­much as the service tax had not been paid by them by the due date and by not filing the returns, the respondent suppressed the relevant information from the department, that the Commissioner (Appeals)'s order is not correct, as while the department in the appeal before the Commissioner (Appeals) has asked for im­position of penalty on the respondent under Sections 76 and 78, he had pro­ceeded to set aside the penalty, which, in fact, had not been imposed by the Asstt. Commissioner and that in view of this, the impugned order is not correct.
 
Respondent’s Contention:-The Respondent pleaded that delay of 5 days in filing of the cross objection may be condoned as the same is on account of genuine reasons, that as held by the Asstt. Commis­sioner as well as by the Commissioner (Appeals), there is no willful mis­statement or suppression of facts on the part of the respondent, that non­payment of service tax was due to financial losses suffered by the respondent, that as soon as the department pointed out the non-payment by the respondent, they paid the service tax in 2008 immediately along with interest, the Asstt. Commissioner has rightly treated this case as covered under the provisions of Section 73(3) of the Finance Act, 1994, that in view of the circumstances of the case, penalty under Sections 76 and 78 of the Finance Act is not called for and that as such, there is no infirmity in the impugned order.
 
Reasoning of Judgment:-The Tribunal carefully considered the submissions made fpm both the sides and perused the records. So far as the delay of 5 days in filing of the memo­randum of cross objection by the respondent is concerned, the same is condoned.
 
In this case, the sub-broker had taken service tax registration in Jan 2005. Initially, service tax was paid and returns were filed. It appears that from April, 2006 onward when in spite of reminders, returns were not being filed and inquiry in this case was conducted by the department in 2008, it was learnt that the respondent in spite of service tax registration were not paying service tax since April, 2006 due to financial difficulties though the tax till March, 2006 had been paid. It is not disputed that immediately after non-payment of service tax was pointed out, the same was paid along with interest. The lower authorities have treated this as a case covered under Section 73(3) of the Finance Act, 1994 under which where any service tax has not been levied or has been short-levied or short paid or erroneously refunded, the persons chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise officer before service of notice on him under sub-section (1) in respect of such service tax, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub­section (1) in respect of the amount so paid. Since in this case, the department does not dispute that the non-payment of tax during the period was on account of financial difficulties having been suffered by the respondent and since imme­diately after on being pointed out, the respondent paid the entire amount along with interest, Tribunal is of the view that this case is covered by the provisions of Sec­tion 73(3) and hence, penalty under Sections 76 and 78 was not called for. In view of this, no infirmity is found in the impugned order.
 
Decision:- The Revenue's appeal is dismissed.
 
Comment:- In this case penalty is not imposed as the assessee failed to discharge its service tax liability due to financial problems and paid the service tax along with interest voluntary before issuance of show cause notice and thereby got covered by the provisions of section 73 (3).

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