TaxTMI 
TaxTMI 
2018 (10) TMI 215
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.... Scheme, 2013 (VCES) and also submitted three 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 ....
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....o the taxable service rendered in the jurisdiction of Goa, in the absence o centralized registration. M/s MVR ought to have remitted the service tax payment into their STC No AAECM6274BST001" The show cause notice 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 agains....
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....wn in respect of their Vishakapatnam unit for discharging the liability of Service Tax due in Goa. c. They had paid the entire amount of Tax due along with the interest before the issuance of Show Cause Notice. d. Commissioner has proceeded to impose penalty on them without showing any mensrea. 4.1 Shri A Sarveswara Rao, Advocate appeared 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 Cour....
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....at Appellant was during the relevant period collecting the service tax from their customers and not filing ST-3 returns or paying the service tax in the account of government. Since they were not paying the service tax amount due to the government account by the due date, penalty against the appellant is justified. 5.0 We have considered the appeals filed and also the submissions made by both the sides during the course of arguments and in written 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 non....
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....rformance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory." This is not a case where a certain provision is mandatory or directory. Here the question is whether 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 rele....
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....tion of payment of Service Tax under STC No AAECM6274BST002 does not arise. Thus it is clear from the notice that noticee do not have any other Service Tax liability other than addressed in the notice and the deposit of service tax made by the noticee into wrong code is towards their Service Tax liability of STC No AAECM6274BST002." 5.5 It is also an admitted and undisputed fact that appellants were registered assessee and were paying service tax. However subsequently they stopped 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%....