M\/s. Rajasthan Crane Service Versus The Union of India, The Settlement Commission Customs, Excise & Service Tax, The Commissioner of CGST & Central Excise, The Additional Commissioner of CGST & Central Excise
Service Tax
2018 (7) TMI 184 – BOMBAY HIGH COURT – 2018 (15) G. S. T. L. 317 (Bom.) , 2018 (362) E.L.T. 486 (Bom.)
BOMBAY HIGH COURT – HC
Dated:- 15-6-2018
WRIT PETITION NO.245 OF 2018
Service Tax
S. C. Dharmadhikari And Prakash D. Naik, JJ.
\nMr.Prakash Shah a\/w. M\/s. Pooja Reddy i\/b. Dubey Vinit Prabhat, Advocate for the Petitioner
\nMr.Pradeep S. Jetly a\/w. Mr.Jitendra B. Mishra, Advocate for the Respondents
\nJUDGMENT
\n( Per Prakash D. Naik, J. )
\nRule. Rule made returnable forthwith.
\n2 By consent of the parties, the petition was heard for final disposal.
\n3 The petitioner has invoked writ jurisdiction of this Court under Article 226 of the Constitution of India and questioned the legality of the order dated 21st August, 2017, passed by the Settlement Commi<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n uthority was not inclined to accept the said submission and hence the petitioner sought to take recourse to the option of settlement before the Settlement Commission. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n r dated 14th June, 2017, enclosing the copy of the earlier letter. That was followed by letter dated 20th June, 2017, wherein the Interim Report dated 19th June, 2017, forwarded to respondent no.2 was enclosed by the Commissioner of Service Tax-VII, Mumbai. In the said Report, certain discrepancies were pointed out and also stated that the eligibility of CENVAT Credit could not be verified in the absence of CENVAT register. The petitioner forwarded reply dated 30th June, 2017, to respondent no.2 in response to the Interim Report of Jurisdictional Revenue Authority and explained all the discrepancies mentioned in the Report, and, it was also pointed out that all the documents were provided except the CENVAT Register. According to petitioner, the Interim Report was sent to respondent no.2 without providing an opportunity to the petitioner to submit any documents. Whereas, all the discrepancies mentioned in the Report were adequately explained. It is contended that despite the submissions<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n o days. The letter was received on 16th June, 2017, which was a Friday and the next working day was 19th June, 2017, on which date the Interim Report was already sent to respondent no.2. It is submitted that whatever available was submitted vide letter dated 19th May, 2017. However, the petitioner were not provided with sufficient opportunity to submit relevant documents. As per the show-cause notice, all CENVAT details were available with the Department before the showcause notice was issued. The documents were sufficient for the purpose of settlement of the case and in the absence of any specific directions to produce original of the documents, the finding in the impugned order that the petitioner had violated a specific direction of respondent no.2, is not correct. He further submitted that the show-cause notice mentions that CENVAT Credit available to the petitioner were verified during investigation and the petitioner had availed CENVAT Credit on that basis. The petitioner had com<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n itioner is afterthought. He submitted that the assessee was requested to file the CENVAT Register and relevant documents vide letter dated 26th May, 2017, and reminder was issued to them vide letter dated 9th June, 2017. However, the assessee did not respond to the said letters. The Service Tax liability of Rs. 1,88,23,722\/- said to be paid through CENVAT Credit could not be verified in the absence of CENVAT Register. However, the availment and utilization of the said CENVAT Credit has been made by the petitioner in ST-3 Returns filed by them subsequently. Mr.Jetly, further submitted that the Bench has considered the application, relevant records and submissions advanced while rejecting the application for settlement. In the records and proceedings dated 19th May, 2017, the petitioner was specifically directed to submit all the documents of service tax payment on the basis of which CENVAT Credit is claimed and relevant records regarding availment and debit of the said CENVAT Credit to <\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n s made by the petitioner. The impugned order is primarily passed on the basis of the fact that there was no proper explanation from the petitioner qua his claims. They did not produce requisite documents in support of settlement inspite of requisition being sent to them. The factual aspects indicate that show-cause notice dated 19th October, 2013, was issued to the petitioner demanding service tax for the period 2008-09 to 2012-13. The petitioner's contention is that the amounts stood paid as the said fact is fortified by the documents evidencing it. The petitioner filed an application before the Settlement Commission on 21st March, 2017, by invoking Section 32E of Central Excise Act, 1944. Thereafter, there is exchange of correspondence from both the sides. They were also served with notice dated 27th March, 2017, which was replied by the petitioner stating that ST-3 Returns for the year 2008-09 were not available as they were filed by their Chartered Accountant, who is no more. T<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n gned order indicates that specific direction was given to the petitioner to produce original record for verification, but, he has only supplied copies. The record of proceedings of hearing dated 19th May, 2017, does not indicate that there was any such direction to the petitioner. The petitioner contends that as per show-cause notice, all CENVAT details were available with the officers of the Department, even before the issuance of show-cause notice. There was no specific direction to produce specified documents. The petitioner's case is that show-cause notice specifically mentions that CENVAT Credits available to the petitioner were verified during the investigation and the petitioner has availed CENVAT Credit on the said basis, which fact is brought up in reply dated 30th June, 2017. The petitioner has submitted that even though all documents, as required, was provided barring CENVAT Credit Register, the request for which was only brought to the attention of the petitioner by let<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n uthority, despite reminders. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n y followed and on being satisfied that the petitioner therein have fulfilled all the norms prescribed for settlement, the application was directed to be proceeded with and the said decision cannot be reviewed. In the facts of that case, this Court set aside the order of settlement Commission and remanded the matter for reconsideration by the Commission. In the present case, respondent no.2 proceeded on interim report of revenue and before receipt of final report, the impugned order was passed. In pursuant to order dated 13th April, 2017, passed by Settlement Commission allowing application under Section 32E to be proceeded with, it was expected that respondent no.2 would look into all material aspects by giving sufficient opportunity to assessee to establish his claim in the application. For any inaction on the part of Revenue to submit Final Verification Report, the petitioners cannot be made to suffer. To ascertain the correct position in the matter, respondent no.2 could have grante<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" M\/s. Rajasthan Crane Service Versus The Union of India, The Settlement Commission Customs, Excise & Service Tax, The Commissioner of CGST & Central Excise, The Additional Commissioner of CGST & Central ExciseService Tax2018 (7) TMI 184 – BOMBAY HIGH COURT – 2018 (15) G. S. T. L. 317 (Bom.) , 2018 (362) E.L.T. 486 (Bom.)BOMBAY … Continue reading “M\/s. Rajasthan Crane Service Versus The Union of India, The Settlement Commission Customs, Excise & Service Tax, The Commissioner of CGST & Central Excise, The Additional Commissioner of CGST & Central Excise”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-12481","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/12481","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=12481"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/12481\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=12481"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=12481"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=12481"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n7 The petitioner filed an application before the Settlement Commission under the provisions of Section 32E of the Central Excise Act, 1944, on 21st March, 2017. The calculation sheets as well as copies of challans evidencing payment of service tax with interest as well as invoices on which CENVAT Credit was availed, as well as copies of ST-3 Returns filed by the petitioner were enclosed along with the said application. According to the petitioner, there was an error in the amounts shown as paid in cash and through availment and utilization of CENVAT Credit in ST-3 Returns filed by the petitioner, which was brought to the notice of respondent no.3. The amounts were shown due to error. Thereafter, the petitioner received notice dated 27th March, 2017, wherein certain discrepancies were noted in the application preferred by<\/p>\n
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\n13 The impugned order mentions that the Revenue Report dated 19th June, 2017 was sent to the petitioner in their counter reply and vide letter dated 30th June, 2017, the petitioner's have made certain submissions. It is stated that the Revenue was asked to submit Final Verification Report and file their comments with reference to petitioner's letter dated 30th June, 2017, but, no Report is filed by the Revenue and, thereby, the Revenue has failed to file their Final Report within the stipulated time. The Bench, has thus, proceeded on the basis of available record. Inspite of directions issued to the petitioner to submit all relevant documents of service tax on the basis of which CENVAT Credit is claimed and relevant record regarding availment and debit of said CENVAT Credit to the Jurisdictional Revenue Authority for verification within three days, the petitioner failed to submit records and it was obligatory on their part to submit original record<\/p>\n
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