TaxTMI 
TaxTMI 
2018 (10) TMI 215
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.... challans dated 26.12.2013 and one challan dated 29.12.2013 towards payment of service tax amount of 65,61,360/- (Rupees Sixty Five Lakhs Sixty One Thousand Three Hundred and Sixty Only). On scrutiny of the said declaration and challans it was observed that Appellant had paid the amount in respect of their unit having STC No AAECM6274BST002 and based in Vishakhapatnam. Since on enquiry appellants failed to remove the discrepancy, and deposit the amount under the account head of Goa Unit the natural corollary was that they had failed to make deposit of 50% of Service Tax amount declared by the due date and hence declaration under VCES was liable to e rejected. It was also gathered from Director General Central Excise Intelligence Goa Regional Unit (DGCEI), that certain enquiries had been initiated against the said Goa Unit as on 1.03.2013, hence the unit was not qualified to make the declaration under the VCES scheme. A show cause notice for rejecting the appellant declaration was issued and adjudicated against the Appellant. On appeal, Commissioner (Appeal) upheld the order of adjudicating authority, rejecting the declaration made by the Appellant on the ground that they had faile....
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....ice has been adjudicated by the Commissioner and following order passed- (i) "I classify the services rendered by M/s M Venkatrao Infra Projects Pvt Ltd., under the category of the taxable service 'Work Contracts Service/ declared Service" for the period 1.4.2011 to 31.03.2014 under Section 65(105)(zzzza) of the Finance Act, 1994/ Section 66E(h) of the Finance Act, 1994. (ii) I confirm the demand of Service Tax of Rs. 1,08,66,653/- on the taxable value of Rs. 9,29,99,080/- received by them towards rendering of the above said services as per proviso to sub section (1) of Section 73 of the Finance Act, 1994. (iii) I hold that interest at the appropriate rate is payable under Section 75 of the Finance Act, 1994. (iv) I appropriate the Service Tax amounting to Rs. 1,08,61,356/- deposited them into against the demand of Service Tax at (ii) above. (v) I appropriate the interest amounting to Rs. 3,30,500/- deposited by them into against the demand of interest at (iii) above. (vi) I am not imposing any penalty under Section 76 of the Finance Act, 1994 (vii) I impose a penalty of Rs. 1,08,66,653/- under Section 78 of the Finance Act, 1994. However, if the noticee pays the serv....
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....ppeared for the Appellant and Revenue was represented by Shri M P Damle, Assistant Commissioner Authorized Representative. 4.2 Arguing for the Appellants, learned advocate stated that- a. Commissioner (Appeal) was not justified in rejecting their appeal, for the reason that the amounts required to be paid by them were erroneously paid by them in account head of their unit at Vishakhapatnam. b. Following the decisions of various authorities, which learned Commissioner has subsequently followed, he should have accepted the payments made in name of Vishakhapatnam unit as payments made in respect of the Goa unit for filing the VCES declaration and should have proceeded to allow their appeal. While relying again on the decisions cited in his appeal memo, he further relied upon the decisions of Hon'ble Gujarat High Court in case of- i. Devang Paper Mills Pvt Ltd.[2016 (41) STR 418 (Guj)]; ii. Auro Pumps Pvt Ltd [2017 (353) ELT 7 (Guj)] c. Commissioner (Appeal) has in his order agreed that there was no investigation pending against the unit as on 01.03.2013 and hence they were justified in law to opt for VCES, for which they had filed the declaration. d. In case Commissioner ....
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....ten submissions filed. 5.1 It is a fact that, while filing the VCES declaration the Appellants have failed to fulfill the requirements prescribed for the said scheme. The declaration was to be filed and appellants were required to deposit the 50% of admitted tax liability by 31.12.2013. However the appellants have failed to comply with the said requirement, as they had filed the challans in respect of their unit in Vishakhapatnam. The submissions made by the appellants to the effect that the payments made by them in against the STC No of Vishakhapatnam unit should be considered as payment made for their Goa unit is devoid of merits. The decisions relied upon by the Appellant do not help to advance the cause of the Appellant, because none of these decisions are in respect specific one time compliance scheme like VCES. There may be errors committed in day to day functioning but not in case when a person is specifically opting for the beneficial scheme. It is also settled principle in law that every prescribed condition cannot be brushed aside as procedural and act of the person justified as bonafide, just to promote the cause of the appellants. Hon'ble Supreme Court has in case of ....
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....er concessional relief of duty which is made dependent on the satisfaction of certain conditions can be granted without compliance of such conditions. No matter even if the conditions are only directory." 5.2 It is also settled principle in law that no one should be allowed to take benefit of his own wrongs. (commodum ex injuria sua non habere debet and nullus commodum capers potest de injuria sua propria.) In the present case undisputedly appellants had been evading the payment of Service Tax during the period 2011 onwards. VCES scheme was intended to help the persons, who would like to discharge the tax liability and was a onetime measure. Since the appellants were evading the payment of tax willfully during the relevant period they cannot claim benefit of such scheme without showing the compliance in respect of the scheme. Further how in such a situation can anyone justify that the challans produced were meant only in respect of the unit in Goa. Appellants were operating and providing taxable services from their Goa unit and also Vishakhapatnam unit. Appellants had filed the declaration under the VCES scheme on 31.12.2013, along with the challans dated 29.12.2013 & 30.12.2013. ....
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....ed payment of service tax and the month wise service tax during the period under dispute is shown in table 2 below: Table 3: Month wise tax payable Amounts in Rupee Year Month Taxable Value Service Tax Rate Tax Payable 2011-12 April 7356773 10.30% 75748 May 0 10.30% 0 June 4506171 10.30% 464136 July 5098300 10.30% 525125 August 0 10.30% 0 September 0 10.30% 0 October 0 10.30% 0 November 2613385 10.30% 269179 December 0 10.30% 0 January 2120049 10.30% 218365 February 8792372 10.30% 905614 March 0 10.30% 0 Total 30487050 10.30% 2458167 2012-13 April 3216864 12.36% 397604 May 5258079 12.36% 649899 June 3649690 12.36% 451102 July 2177922 12.36% 269191 August 2739227 12.36% 338568 September 2177922 12.36% 269191 October 3878226 12.36% 479349 November 7408809 12.36% 915729 December 0 12.36% 0 January 0 12.36% 0 February 2978018 12.36% 368083 March 6988944 12.36% 863083 Total 40473701 12.36% 5001799 2013-14 April 0 12.36% 0 May 0 12.36% 0 June 385807 12.36% 47686 July 2850383 12.36% 352307 August 1861149 12.36% 230038 September 0 12.36% 0 ....