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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/2011-12/1417

Whether Penalty would be leviable if the assessee is under belief that service tax not payable as individual based upon the board’s circular? {See Case law section in what’s new}

Citation: -2011 (24) S.T.R. 304 (Tri. - Del.)
 
Case:-  VICKY ENTERPRISES Versus COMMISSIONER OF CENTRAL EXCISE, JAIPUR
 
Issue:- Whether penalty will be payable when the assessee was under belief that service tax was not leviable on services provided by him as individual based upon Board’s circular?
 
 
Brief Facts:The appellant is a proprietorship concern of Shri Gobind Singh Parmar and during period of dispute i.e. during period from 16-8-02 to 31-12-06, was providing the service of loading of urea to M/s. DSCL, Shriram Nagar, Kota, which according to the department was covered by the service tax entry "cargo handling service" and was taxable w.e.f. 16-8-02.
 
However, they were not paying the service tax and this non-payment was detected only in course of scru­tiny of records of M/s. DSCL. When this non-payment was pointed out to the appellant, they voluntarily paid an amount of Rs. 2,77,657/- towards service tax and an amount of Rs. 75,000/- towards interest, as according to them, this was their service tax liability alongwith interest.
 
However, subsequently a show cause notice dated 10-7-07 was issued for demand of service tax of Rs. 2,86,691/- alongwith interest and appropriation of the amount already paid by them and also imposition of penalty on them. The Assistant Commissioner vide order-in­-original dated 9-7-08 confirmed the service tax demand of Rs. 2,86,691/- along- with interest, appropriated the amount already paid by them and imposed pen­alties on them under Sections 76, 77, 75A and 78 of the Finance Act, 1994.
 
Ac­cording to the appellant, the balance amount of service tax of Rs. 1905/- and has also been paid by them.
 
On appeal to Commissioner (Appeals), the Commis­sioner (Appeals) vide order-in-appeal dated 25-1-10 upheld the order-in-original. Before the Commissioner (Appeals), the appellant pleaded that during the period of dispute there was doubt as to whether the individual providing the cargo han­dling service liable to pay service tax or not and for this reason only the service tax was not paid and prayed for waiver of the penalty under Section 80 of the Finance Act, but this plea was not accepted.
 
Against this order of the Commis­sioner (Appeals), the present appeal has been filed for setting aside the penalty on the appellant under Sections 75A, 76, 77 and 78 of the Finance Act, 1994.
 
Appellant’s Contention:Appellant pleaded that the appellant are only contesting the penalty imposed on them, that the entire amount of service tax alongwith interest has been paid by them, that non-payment of service tax by the due date was for the reason that during the period of dispute on account of Board's Circular No. B11/1/2002-TRU, dated 1- 8-02, wherein it had been clarified that the cargo handling service provided by a person in individual capacity would not be taxable and since the appellant are a proprietorship concern, they were under belief that they are not liable to pay the service tax and for this reason no service tax registration has been obtained, that in these circumstances, the Tribunal in the case of Jagdeep Singh Saluja v. CCE, Bhopal 2008 (12) S.T.R. 309 (Tri. - Del.) and also in the case of Kan­nappa Corporation v. CCE, Trichy2010 (19) S.T.R. 768 (Tri.-Chennai), has set aside the penalty on the individuals/proprietorship concern providing cargo handling service, and that in view of this, the impugned order upholding the penalty on the appellant is not correct.
 
Respondent’s Contention:Respondent de­fended the impugned order by reiterating the findings of the Commissioner (Ap­peals) and pleaded that no satisfactory reason has been given by the appellant for failure to discharge their service tax liability and hence the provisions of Sec­tion 80 of the Finance Act cannot be invoked. The respondent also cited the judgment of Hon'ble Kerala High Court in the case of Assistant Commissioner ofaCentral Excise v. Krishna Poduval 2006 (1) S.T.R. 185 (Ker.), wherein it was held that separate penalty under Section 76 and 78 of the Finance Act, 1994a is imposable even if the offences committed as in course of same transaction or arise out of the same act.
 
Reasoning of the Judgment:There is no dispute about the fact that the appellant is a proprietor­ship concern of Shri Gobind Singh Parmar, who was providing the cargo han­dling service and also Circular No. 11/1/2002-TRU, dated 1-8- 2002 is also relied upon.
 
It is, however, pleaded that since the appellant being proprietor­ship concern being an individual, according to the above-mentioned circular of the Board, were under impression that they were not liable to pay the service tax. It is in view of this circular, that the Tribunal in the case of Jagdeep Singh Saluja v. CCE, Bhopal(supra) and Assistant Commissioner of Central Excise v. Krishna Poduval (supra) has set aside the penalty on the individuals/proprietorship concerns providing cargo handling service. In view of this position, Tribunal is of the view that there was justification for invoking Section 80 of the Finance Act, 1994 and waiving the penalty imposed on the appellant under Sections 75A, 76, 77 and 78 of the Finance Act; as the above-mentioned Circular of the Board gives an impression that an individual providing cargo handling service would not be covered under the service tax. In view of this, the impugned order upholding the penalty on the appellant is not correct, the same is set aside.
 
Decision:The appeal is allowed.
 

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