2014 (11) TMI 930

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....overlooking the fact that the service tax demand had been made against us with improper quantification of service tax. The demand had been made under two Sections, namely Section 73 and Section 73-A of the Finance Act, 1994. The demand is not sustainable? 2. Whether the Tribunal is correct in overlooking the fact that Section 73(1) empowers the Government to demand the service tax not levied or paid or short levied or short paid or erroneously refunded within one year in the normal course or within 5 years in the case of suppression, fraud, etc. Section 73(A)(3) empowers the Government to issue notice to such persons in the case of non-payment of service tax even after collecting the same by the provider of service tax. Therefore, these tw....

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....57 (Tri-Del) that ratio of law laid down in the above case is squarely applicable to the instant case and hence no penalty can be imposed on the appellant, as the provisions of Section 73A are pari-materia to Section 11D? 5. Whether the Tribunal is correct in not considering the decision rendered in the case of ETA Engineering Vs. CCE, reported in 2006(3) STR 429 and M/s.Bhoruka Aluminium Ltd. Vs. CCE reported in 2008(11) STR - 163 (Tri.Bang.) wherein, it has been held that when there is a bonafide belief about the levy, then there exists reasonable cause on their part not depositing the service tax in time, therefore the appellants are entitled for the benefits of Section 80 of the Finance Act, 1994. This ratio is squarely applicable to t....

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....h the service tax payable on the basis of invoices raised, but have not chosen to pay the service tax to the Government during the period in question. In fact, there is a clear finding in Paragraph 14(d) of the order that there is no dispute on the service tax payable. In paragraph 14(e) of the order, it has been recorded that the reason for non-payment of service tax according to the assessee is that the global recession and sudden financial meltdown, the financial crisis in the United States of America forced one of their clients, viz., Rank Investments, to default payment and therefore, they are in financial distress. This plea was not accepted by the Commissioner and in paragraph Nos.18.1 and 18.2, a specific finding has been given that....

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....f the Adjudicating Authority, the appellant has preferred an appeal along with an application for stay of the order of the Commissioner before the Customs, Excise and Service Tax Appellate Tribunal contenting that they have paid the entire tax amount in the first case at Rs. 2,59,20,009/- and insofar as the second case, a sum of Rs. 1,65,67,868/- was paid out of Rs. 2,52,41,055/- and the balance of Rs. 97.00 lakhs may be waived pending appeal due to the financial hardship. The Department representative strongly objected stating that the appellant had already collected the amount from the customer. 4. The Tribunal by order dated 28.7.2014 in Miscellaneous order Nos.41236 and 41237 of 2014 taking note of the total demand of Rs. 2,59,20,009/-....