2014 (12) TMI 243 - AT - Service Tax

Court rules in favor of appellant, setting aside impugned order. Appeals allowed, judgment pronounced in open court.

CANARA BANK Versus COMMISSIONER OF SERVICE TAX, BANGALORE

The court ruled in favor of the appellant, setting aside the impugned order solely on merits. The appeals were allowed, and the judgment was pronounced ... Interest on delayed payment of tax - Section 75 - Provisional assessment - Held that:- There is no final assessment order at all. This situation is covered by the decision of Hon’ble High Court of Bombay in the case of Commissioner Central Excise, Nagpur v. ISPAT Industries Ltd. - [2010 (10) TMI 178 - BOMBAY HIGH COURT] wherein Hon’ble High Court took the view that if differential duty was paid even before final assessment was made, the assessee is not liable to pay interest. Further, this decision was followed by the Tribunal in the case of Tata Motors Ltd. [2011 (3) TMI 531 - CESTAT, MUMBAI]. In the present case, there is no final assessment order at all and the assessee has paid the interest before final assessment. Therefore, the question of demanding interest does not arise when there is no final assessment order or the full amount of duty has been discharged before final assessment order passed by the proper officer. - Decided in favour of assessee. Issues: Liability to pay interest on delayed service tax payments under Section 75 of the Finance Act, 1994.Analysis:1. Limitation Aspect: The judge decided not to delve into the limitation aspect and focused solely on the merits of the case.2. Merits of the Case: Both parties presented various legal decisions and arguments. The judge highlighted the relevance of a specific decision by the Hon'ble High Court of Bombay upheld by the Hon'ble Supreme Court, which was considered unique to the case.3. Provisional Payment Request: The appellant made a request for provisional payment of service tax, subject to certain conditions, as per a letter dated 3-5-2005. The Revenue contended that interest was due based on the provisions of Section 75 of the Finance Act, 1994, while the appellant relied on Service Tax Rules and Central Excise Rules.4. Rule 6(4) of Service Tax Rules, 1994: This rule allows for provisional payment of service tax when an assessee is unable to estimate the actual amount payable. The procedure to be followed aligns with the provisions of Central Excise Rules, 2001.5. Final Assessment Order: The judge noted that no final assessment order was passed during the disputed period, and there was no finding that the appellant did not comply with Rule 6(5) of the Service Tax Rules, 1994.6. Interest Payment: The judge outlined the procedure for interest payment in case of a final assessment order and emphasized that in the absence of such an order, the appellant may not be liable to pay interest, citing relevant legal precedents.7. Decision and Conclusion: The judge ruled in favor of the appellant, setting aside the impugned order solely on merits. The appeals were allowed, and the judgment was pronounced and dictated in open court.