TaxTMI 
TaxTMI 
2018 (3) TMI 1390
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....ifferent banks and financial institutions. The banks gave certain amount as consideration to the petitioners under the head Commission and these amounts were received for rendering the said services, which are liable to service tax. Information was received by DGGSTI, Hyderabad, which suggested that the petitioners collected the service tax from the service recipients and did not pay the same to the credit of the Central Government. Accordingly, investigation was initiated against the petitioners. The scrutiny of the documents, recovered from the petitioners, revealed that the petitioners received consideration, along with service tax thereon, from the service recipients, during the period October 2012 to March 2017. The petitioners collected service tax to a tune of Rs. 4,05,77,984/- and Rs. 2,16,89,832/- respectively from different service recipients but did not pay the same to the credit of the Central Government. Party verification was also done, which indicated that service consideration was paid by the recipients, inclusive of service tax. Hence, the petitioners were held liable for the offence under Section 89 of the Finance Act, 1994 (for short the Act). 4. Section 89....
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.... same to the Central Exchequer; the issue is not just a case of service tax evasion but a serious fraud of collecting service tax and failing to credit the same to the Central Exchequer beyond the period of six months from the date on which the said payment became due. 9. The Special Public Prosecutor, except making the above submissions in the counter affidavit and in his arguments, does not really answer the submission made by the counsel for the petitioners that the due time for payment has not arisen, as no notice was served, as required by the Act. As regards the submission that the order granting bail has become invalid, as, the time permitted for furnishing bank guarantee has expired, it can be said that the said contention is not correct. The time given was ten days from the date of order. The order was passed on 16.02.2018 and the petition was filed on 22.02.2018 and the order was stayed on 26.02.2018. 10. With regard to the undertaking that was given by the petitioners, allegedly, the counsel for the petitioners submits that the undertaking, which is given by their counsel and not the petitioners, does not bind the petitioners. In that regard, he relies on a decisio....
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.... that a person has collected service tax and retained such amount without depositing it to the credit of the Central Government. (ii) Where an assessee has been regularly filing service tax returns which have been accepted by the ST Department or which in any event have been examined by it, as in the case of the two Petitioners, without commencement of the process of adjudication of penalty under Section 83 A of the FA, another agency like the DGCEI cannot without an SCN or enquiry straightway go ahead to make an arrest merely on the suspicion of evasion of service tax or failure to deposit service tax that has been collected. Section 83 A of the FA which provides for adjudication of penalty provision mandates that there must be in the first place a determination that a person is "liable to a penalty", which cannot happen till there is in the first place a determination in terms of Section 72 or 73 or 73 A of the FA. (iii) For a Central Excise officer or an officer of the DGCEI duly empowered and authorised in that behalf to be satisfied that a person has committed an offence under Section 89 (1) (d) of the FA, it would require an enquiry to be conducted by giving....
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....er held that there can be no estoppel against the Constitution; the Constitution is not only the paramount law of the land but it is the source and sustenance of all laws; the doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs; if a person makes a representation to another, on the faith of which the latter acts to his prejudice, the former cannot resile from the representation made by him. It was held that the said principle can have no application to representations made regarding the assertion or enforcement of fundamental rights. For example, the concession made by a person that he do not possess and would not exercise his right to free speech and expression or the right to move freely throughout the territory of India cannot deprive him of those constitutional rights, any more than a concession that a person has no right of personal liberty can justify his detention contrary to the terms of Article 22 of the Constitution. It was further observed that fundamental rights are undoubtedly conferred by the Constitution upon individuals which have to be asserted and enforced by them, if those rights are vi....