TaxTMI 
TaxTMI 
TaxTMI 
2013 (8) TMI 414
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....of every month before the expiry of thirty days from the end of that month before the Commissioner of Customs, a return in the prescribed Form-2, showing the particulars of the flights operated, no. of passengers carried, amount of tax collected, and amount paid into the treasury etc. under Rule 9 of FTT Rules, 1979. The Applicants, "Carrier" submitted the IATT return for the month of March, 2003. On scrutiny of the same it was found that the "Carrier" failed to deposit an amount of Rs. 45,07,500/- towards the FTT for the month of March, 2003 within the period as stipulated in Rule 9 of the FTT Rules, 1979 read with Notification No. 1/2002 and deposited the same on 17-4-2003 after a delay of 2 days. The Assistant Commissioner of Customs, FTT, New Delhi issued Show Cause Notice C. No. VIII(NCH)FTT/SCN/SA/41/2004/5969, dated 27-4-2004 calling upon the explanation of the carrier for causing delay of 03 for failing to deposit the FTT amount of Rs. 45,12,440/- within the stipulated period as explained above and also as to why an amount of Rs. 4,952/- should not be recovered from them towards interest in terms of Section 35A(1) of the Finance Act, 1979 read with Notification No. 3/94-FTT....
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....f natural justice. The Applicant has not been afforded any opportunity of being heard by Shri Mahendra Singh, Assistant Commissioner of Customs (FTT) before passing the impugned order. The order dated 13-10-2005 wrongly records that none appeared on 14-4-2005 and 19-8-2005 while in fact the representatives had appeared. In fact on 19-8-2005 the office of the then Assistant Commissioner of Customs (FTT) had personally handed over the notice of hearing for 23-8-2005 to Shri Manmeet Singh Jamwal, Advocate on 19-8-2005. Similarly it wrongly records that Applicant had admitted any delay during the hearing of 23-8-2005 because even after the part hearing on 23-8-2005 Shri H.K. Gulati, Counsel of Applicant was asked to sign in the margin and next date noted as 14-9-2005, which he was asked then to cut. This was before Shri S.K. Sinha, the then Assistant Commissioner of Customs (FTT). The three hearings had not taken place before Shri Mahendra Singh, Assistant Commissioner of Customs (FTT) who has passed the order dated 13-10-2005 and the said Shri Singh has in fact never heard the Applicant. 3.2 Because the Show Cause Notice dated 27-4-2004 issued by the Respondent is ho....
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....resaid by the Department and/or otherwise insistence. 3.6 Because the preamble of the order dated 13-10-2005 directs the Applicant to file appeal under Inland Air Travel Tax Rules, which clearly shows that the provisions regarding FTT stands abolished. Therefore the entire Show Cause Notice, as well the proceedings pursuant thereto are without jurisdiction. 4. Personal hearing scheduled in the case on 20-4-2012 was attended by Mr. M.J.S. Ruppal and Shri Jitender Kumar Advocates on behalf of the Applicant, who reiterated grounds of Revision Application. Nobody attended personal hearing on behalf of Respondent department. 5. Government has considered the relevant case records, both oral and written submissions of the respondent and also perused the Order-in-Original and Order-in-Appeal. 6. Government notes that it is a fact on record that the Applicant has admittingly deposited an interest amount of Rs. 4,940/- towards a delay of 2 days in depositing FTT amount of Rs. 45,07,509/- for the month of March 2003. Thus there can be no dispute that there was delay in depositing due FTT amount within the stipulated period of 15 days under Rule 4 of FTT Rules, 1979 (as....
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.... service they were also given a collection charges. The Government revenue was to be deposited by due date as per laid down statutory provisions. In this case it is noted that the applicant himself had deposited the said amount but admittingly late by two days. Therefore impugned Show Cause Notice was not a "Notice for payment tax not paid or under paid or erroneously refunded" under Rule 7 of FTT Rules only but a Show Cause Notice for confirmation of admitted delay of deposit and for the purpose of invocation of penal provisions for which no time limitation has been prescribed under relevant Section 38 of Finance Act, 1979. It is settled principle of law that authorities/adjudicating officer acting under the statute can not ignore or go against the same. 9. Government peruses the relevant penal provisions of the Foreign Travel Tax (FTT) and Inland Air Travel Tax (IATT) as per respective Finance Acts which are as under : Section 38(3) of Finance Act, 1979 relating to Foreign Travel Tax (FTT) "Every carrier or other person who fails to pay the foreign travel tax to the credit of the Central Government under sub-section (2) of section 35 shall in addition to the payment....
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....may urge an explanation thereby contending absence of mens rea and which will effectively render the provision of penalty an otiose provision. The intention of the legislature in fact becomes further clear from insertion of Section 46B by Section 66 of the 2003 Finance Act whereby the failure to pay the IATT collected has been held to be punishable with a rigorous imprisonment for term which shall not be less than three months but which may extend to seven years with fine. The object of the legislation is therefore very clear that a carrier shall deposit the amount of tax collected by the due date and it should not tinker around with Government monies for which they are also getting paid collection charges. In view of the above, the present writ petition is dismissed." The ratio of this judgment is squarely applicable to the case matter under reference as both the above penalty provisions under Section 38(3) of Finance Act, 1979 and Section 46(3) of Finance Act, 1989 are exactly similar. 10. From the above discussion, Government is of the firm opinion that the applicant had deliberately contravened the provisions of sub-section (3) of Section 38 of Finance Act, 1979 (FTT). Fo....