TaxTMI 
TaxTMI 
2015 (8) TMI 1074
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....missioner (Appeals) and OIO No.122/JC/2012 dated 31.12.2012 passed by the Joint Commissioner of Central Excise; (B) That Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction thereby directing the Commissioner of Central Excise (Appeals), Rajkot to hear and decide on merits the petitioner's appeal filed against OIO No.122/JC/2012 dated 31.12.2012 without considering it to be barred by limitation; (C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to restraint the respondents, their servants and agents from taking any action including any coercive recovery against the petitioners pursuant to order no. A/11168/2014 dated 02.07.2014 passed by the Appellate Tribunal, Ahmedabad; (D) An exparte adinterim relief in terms of Para 13(C) above may kindly be granted; (E) Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted." 3. By an order dated 02/07/2014 learned Appellant Tribunal has rejected the appeal preferred by the petitioner challenging the order dated 10/02/2014 passed by the Commissioner (Appeals), Rajkot, w....
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....ative to the extent that the petition under Article 226 of the Constitution would not lie for the purpose of condonation of delay in filing the appeal. (3) On the third question, the answer is in affirmative, but with the clarification that- A) The petition under Article 226 of the Constitution can be preferred for challenging the order passed by the original adjudicating authority in following circumstances that A. 1) The authority has passed the order without jurisdiction and by assuming jurisdiction which there exist none, or A.2) Has exercised the power in excess of the jurisdiction and by overstepping or crossing the limits of jurisdiction, or A.3) Has acted in flagrant disregard to law or rules or procedure or acted in violation of principles of natural justice where no procedure is specified. B) Resultantly, there is failure of justice or it has resulted into gross injustice. We may also sum up by saying that the power is there even in aforesaid circumstances, but the exercise is discretionary which will be governed solely by the dictates of the judicial conscience enriched by judicial experience and practical wisdom of the judge." In view of the abov....
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....ong with the appeal preferred before the Commissioner (Appeals), however, since the appeal is not decided on merits, resultant effect would be gross injustice to the petitioners, who have paid the service tax, which has now be levied on respondent authority. 8. Mr.Paresh Dave, learned advocate for the petitioners would further submit that the case of the petitioners does not fall in any of the reasons provided for laving penalty for supressing, etc. of value of taxable services under section 78 of the Act and, therefore, the authority has committed an error in exercise of its powers. He would submit that it is not a case of either of fraud, collusion, wilful misstatement, suppression of facts, or contravention of any of the provisions with regard to payment of service tax and, therefore, it would not have imposed penalty under section 78 of the Act. In support of his submission, he has relied upon the decision rendered in the case of Union of India V/s. Rajasthan Spinning & Weaving Mills reported in 2009(238) E.L.T. 3 (SC) and submitted that the case of the petitioners would not fall within a meaning of "suppression" as held by the Apex Court while dealing with similar provision....
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....ably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent, which would call for any interference under Article 226 of the Constitution of India. He would submit that the case of the petitioners falls under Section 78 of the Act, so far as imposing penalty is concerned. He would submit that the case of the petitioners falls under one of the reasons i.e. suppression of facts, which is established from the facts and surrounding circumstances and conduct of the petitioners. The petitioners had not come forward to pay any service tax and the authority found out the evasion of payment of service tax only when the assessee company namely M/s.Dosti Fabricators was raided by the respondent authority. By taking us through the impugned order, he would submit that though the petitioners were heard and sufficient opportunity was given for production of details about payment of service tax, as he claimed in the written submission, the petitioners could produce e-payment receipts only qua Rs. 5,74,932/-. He would submit that the case of the petitioners is exhaustively dealt with by the respondent and has rightly imposed penalty u/s.78 of the Ac....
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....52008 onwards) to 201011, it appeared that M/s.Ronak should have paid service tax of Rs. 23,02,368/( Rupees twenty three lakh two thousand three hundred sixty eight only)(which includes education cess of Rs. 44,705/and secondary & higher education cess of Rs. 22,353/) excluding the amount of service tax paid prior to initiation of investigation by the DGCEI. Shri Jumma Sati in his statement dated 12082011 has stated that they had paid service tax of Rs. 13,50,539/( which includes education cess of Rs. 26,224/and secondary & higher education cess of Rs. 13,112/) along with interest of Rs. 1,36,201/but no copy of GAR7 challans or epayment receipts were produced till the date of issue of this notice. However, he had produced copies of the following GAR challans as an evidence of payment of service tax of Rs. 5,74,932/( which includes education cess of Rs. 11,164/and secondary & higher education cess of Rs. 5,582/) along with interest of Rs. 32,048/during the course of investigation as detailed below: (amount in Rs.) Year Period Date of payment Service tax Edu. cess SHE Cess Interest Total 2009-10 April,2009 to Sept,2010 3103-2011 2,18,186 4364....
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....m tax benefit cannot be granted in cases involving fraud, collusion, willful misstatement and suppression of facts with an intent to evade payment of tax. I rely upon the decision of the Tribunal in the case of Dhillon Cooldrinks & Bevarages Ltd Vs. CCE Jalandhar 2011(263) ELT 241 (TriDel) which has placed reliance on the decision of the Hon'ble Supreme Court in case of Amrit Agro Industries Vs CCE Ghaziabad 2007(210) ELT 183(SC). As already discussed above, since this is a case of suppression of facts with an intent to evade payment of tax, no cum tax benefit can be given. 15. Regarding imposition of penalty under Section 77 of the Finance Act,1994, I find that the noticee have not filed any ST3 return for the period under dispute, though they are well aware of the provisions of law and for such contraventions penalty under Section 77 of the Finance Act,1994 is imposable. 16. It is seen that this non payment of tax would not have come to the notice of the department if the same was not detected during a search / enquiry against the noticee. Therefore the only conclusion that can be arrived at is that the noticee has deliberately suppressed the material facts from the departm....