Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

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