M/s. Boutique Hotel India Pvt. Ltd. Versus CGST CC & C.E., Jodhpur-1
Service Tax
2019 (1) TMI 1174 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 3-1-2019
Service Tax Appeal No. ST/53469/2018-ST [SM] – FINAL ORDER NO. 50037/2019
Service Tax
MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
Present for the Appellant: Ms. Priyanka Goel, Advocates
Present for the Respondent: Mr. P. Juneja, D.R.
ORDER
PER: RACHNA GUPTA
The appellant herein is the service provider for the services as that of cab operators, mandap keepers, health club etc. The Department observed that during the period from October, 2007 to December, 2012, the appellant has short paid the tax amounting to Rs. 13,25,286/-. It was for the foreign remittances that the appellant has made to the Foreign Service providers for receiving various services as that of advertising & marketing, business auxiliary service, commission to travel agent service etc. The Department thereafter served a show cause notice
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aid there was the option of cenvat credit and it would have been the Revenue neutral situation. It is only the penalty, which has been confirmed by the order under challenge that has been objected by the appellant vide the present appeal. Ld. Counsel has placed reliance upon Section 73 sub section (3) of the Finance Act, 1994 for the purpose. Reliance is placed on decision in the case of M/s.I2K2 Networks Pvt. Ltd. reported in 2018-TIOL-2343-CESTAT-All. Accordingly, the order is prayed to be set aside. Appeal is prayed to be allowed.
4. Per contra, ld. D.R. has paid emphasis on para 7.2 of the order under challenge where the plea of the applicability of Section 73 (3) of the Finance Act has duly been considered by Commissioner (Appeals). It is impressed upon that since the short payment of the tax has not been paid by the appellant unless the Department has pointed it out, it amounts to the suppression of fact and in that scenario it is Section 73, sub section (4) which comes into exi
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vice tax, and inform the [Central Excise Officer] of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid :
Provided that the Central Excise Officer may determine the amount of short-payment of service tax or erroneously refunded service tax, if any, which in his opinion has not been paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of “thirty months” referred to in sub- section (1) shall be counted from the date of receipt of such information of payment.
Explanation.1- For the removal of doubts, it is hereby declared that the interest under section 75 shall be payable on the amount paid by the person under this sub-section and also on the amount of short payment of service tax or erroneously refunded service tax, if any, as may be determined by the [Central Excise Officer], but for this sub-se
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the present case that the entire duty as has been proposed to be recovered from the impugned show cause notice stands deposited vide challan No. 00055 dated 18.03.2003. The interest has also been deposited vide challan No. 00003 dated 19.03.2003. The fact has very much been acknowledged in the show cause notice itself. The entire payment is thus before the issuance of show cause notice dated 16.04.2013. There is no reason to deny the benefit of sub section (3) of Section 73 of the Act to the appellant.
7. The Department has made emphasis on sub-section (4) thereof, but the perusal of show cause notice makes it clear that Section 73 to sub-section (4) has not been invoked. It has now been settled law that the Department is not allowed to go beyond the show cause notice, otherwise also section 73 sub-section (4) includes the cases where the short payment or non-payment by the reason of fraud, collusion, willful misstatement or suppression of facts. Mere non-payment or short payment for
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