Aditya Medisales Ltd. Versus Commissioner of Customs GST, Belapur
Service Tax
2019 (3) TMI 420 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 21-2-2019
APPEAL NO: ST\/87272\/2018 – A\/85350\/2019
Service Tax
Shri Ajay Sharma, Member (Judicial)
\nShri Kiran Sawale, Advocate for appellant
\nShri S.B. Mane, Assistant Commissioner (AR), Shri Omi Shivdikar, Assistant Commissioner (AR) for respondent
\nORDER
\nThe instant appeal has been filed challenging the order dated 26.2.2018 passed by the Commissioner, CGST & Central Excise, Belapur. The issue to be decided in this Appeal is the imposition of penalty u\/s. 78 of the Finance Act, 1994.
\n2. The appellants are engaged in activities of consignment business and trading business as a consignment agent and trader of products of M\/s. Sun Pharmaceutical Industries and their group companies. The dispute is the availment of ineligible Cenvat Credit by the Appellant of Rs. 13,85,751\/ – during the period from September, 2011 to Feb<\/p>\n
= = = = = = = =<\/p>\n
Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n er resulting into short payment but after intimation by the department, the Appellant paid the total amount with interest and in spite of that the department had issued the show cause notice. According to him, during the relevant period, due to absence of person who was handling the service tax, service tax payment through Cenvat debit reflected in the ST-3 Returns for the relevant period was less than the Cenvat Credit available in their Cenvat Credit Register and since the Cenvat Credit was not available with the appellant at that time, it resulted in short payment of service tax. He also submitted that the question of fraud, willful mis – statement or suppression of facts does not arise since immediately upon pointing out the shortfall by the department, the appellant paid the entire amount with interest without even waiting for the show cause notice and that they have been following all norms and have been filing Service Tax Returns in form ST-3 regularly. According to him, the sho<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n the service tax is paid before the service of notice then the department shall not issue any notice u\/s. 73(1) ibid and only if there is any malafide intention or suppression then the benefit of Section 73(3) is not available. The only reason given by the revenue in the show cause notice for invoking the extended period is that but for audit, the subject evasion would have gone undetected and revenue lost forever and that the action of the appellant appears deliberate and intentional with intent to evade payment of Service Tax. Therefore, according to the Revenue, the case falls within section 73(4) and not under section 73(3) ibid. It is settled legal position that if the assessee deposited the service tax liability with interest before the issuance of show cause notice then the provisions of section 73(3) ibid gets attracted. It is true that section 73(4) keeps operation of section 73(3) out of the purview, in cases where the service tax has not been levied, paid, short-levied or sh<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n or on the basis of what was ascertained by the Central Excise Officer. Sub-section (3) was intended to confer an extended benefit much more in nature than the varying degrees of penalty imposed under the different provisos of sub-section (1) of Section 78. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n proceedings. Mens rea has to be proved for invoking the extended period of limitation and also for imposing penalty under Section 78 of the Finance Act, 1994. Mere inaction to declare what was supposed to be declare d under the law does not lead to suppression of facts. Similarly, mere non-payment of short- payment of duties or taxes cannot be construed as with an intent to evade duties\/taxes. There must be something more than mere failure to pay taxes for invoking the provisions of Section 78 ibid. The culpable state of mind of the assessee needs to be proved absolutely and not by mere references. The appellant has shown their bona fide by paying the service tax alongwith interest thereon immediately admitting their unintentional lapse. Considering the facts involved, I have come to the conclusion that the authorities below have failed to brought on record any evidence to prove suppression or mala fide intention on the part of the appellant and, therefore, no case has been made out f<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" Aditya Medisales Ltd. Versus Commissioner of Customs GST, BelapurService Tax2019 (3) TMI 420 – CESTAT MUMBAI – TMICESTAT MUMBAI – ATDated:- 21-2-2019APPEAL NO: ST\/87272\/2018 – A\/85350\/2019Service TaxShri Ajay Sharma, Member (Judicial) Shri Kiran Sawale, Advocate for appellant Shri S.B. Mane, Assistant Commissioner (AR), Shri Omi Shivdikar, Assistant Commissioner (AR) for respondent ORDER The instant appeal … Continue reading “Aditya Medisales Ltd. Versus Commissioner of Customs GST, Belapur”<\/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-17203","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/17203","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=17203"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/17203\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=17203"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=17203"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=17203"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
For full text:-Visit the Source <\/a><\/p>\n
For full text:-Visit the Source <\/a><\/p>\n
For full text:-Visit the Source <\/a><\/p>\n
\n16. It is true that sub-section (4) of Section 73 keeps the operation of sub-section (3) out of the purview, in cases where the Service Tax has not been levied, paid, short-levied or short-paid by reason of fraud, collusion, willful mis-statement, etc. But nevertheless, the law does not treat all cases of fraud, collusions, willful misstatement, suppression of facts, etc., alike.
\n17. Keeping this in mind, if we go through the order- in-original, it could be found that the respondent- assessee paid the service tax to the extent of Rs. 40,39,751\/- along with interest to the tune of Rs. 12,42,633\/-. This amount was paid even before the show cause notice, dated 22.04.2010, was issued. It is only in Paragraph 15(iii) and 15(iv) that the<\/p>\n
For full text:-Visit the Source <\/a><\/p>\n
For full text:-Visit the Source <\/a><\/p>\n