KM Trading & Agencies Pvt. Ltd. Versus C.C.E. & CGST, Jaipur
Service Tax
2019 (1) TMI 320 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 19-11-2018
Service Tax Appeal No. ST/51602/2018 [SM] – A/53340/2018-SM[BR]
Service Tax
MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
Present for the Appellant: Mr. Chirag Jain, CA
Present for the Respondent: Mr. P.R. Gupta, DR
ORDER
PER: RACHNA GUPTA
Present is an Appeal directed against the Order-in-Appeal No. 27 dated 01.02.2018. The appellants are engaged in providing renting of immovable property services. Department during an audit, on scrutiny of ST-3 returns/ challan observed that the appellant had made delayed payment of service tax for the period w.e.f. April 2008 to September 2012. However, no interest was paid on the said delayed payment. Accordingly, a Show Cause Notice No. 10060 dated 01.08.2014 was served upon the appellants proposing the recovery for Rs. 2,87,881/- as an interest to be paid on delayed paymen
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Specifically due to the decision of Hon'ble Delhi High Court in the case of Home Solutions Retails India Ltd. & others Vs. Union of India 2009(14) STR 433 vide which the levy of service tax on renting of renting of immovable property was struck down. Observing that renting in itself is not a service as it does not involve any value addition. It is submitted that due to this decision the tenants stopped paying service tax amount and therefore the liability could not be discharged for the said period by the appellant. It is further submitted that entire above facts were very well to the notice of the Department. Still the Show Cause Notice as has been issued on 19.08.2014 is very much beyond the one year period as is prescribed for the issuance thereof. It is submitted that in view of the reason mentioned above there was no intention of the appellant to evade the duty. Department was not entitled to invoke the extended period of limitation. The Show Cause notice is alleged by barred by t
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ails to deposit service tax or any part thereof within the period prescribed.
5. After hearing both the parties and perusing the entire record, I am of the opinion as follows:-
In the impugned case, it is the demand of interest on the delayed payment of service tax in accordance of Section 75 was initially proposed and subsequently confirmed. The admitted facts apparent from the record including the Orders of both the Adjudicating Authorities below are:
(i) That out of the entire disputed period as mentioned in the Show Cause Notice, the payment of service tax for the period of April 2008 to March 2009 and for April 2012 to September 2012 has been made in time.
(ii) With respect to the remaining period of April, 2009 to March, 2012 the same could not be deposited due to not being received from tenants in view of Delhi High Court decision as above. However, the full tax was deposited by the appellant before the issuance of the Show Cause Notice.
I observed that there has been an am
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or the said amendment but since the amendment is beneficial in nature, retrospect effect can be given to the said amendment. Therefore, no question of imposition of penalty at all arises.
6. The appellant has otherwise challenged the Show Cause Notice on the ground of limitation more than on the ground of merits. In view of the above discussion and the facts on record as far as the period and date of Show Cause Notice is concerned, Show Cause Notice is apparently beyond the normal period of one year. There is the apparent acknowledgment on the part of the Adjudicating Authority about the decision of Delhi High Court as has been impressed upon by the appellant. In the given circumstances, the non-payment was actually due to the said prevalent confusion. There is nothing on record which may be considered as an evidence qua positive act of the appellant of having an intention to evade the duty for the said period. Once there is no such intention apparent, Department was not entitled to i
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