TaxTMI 
TaxTMI 
2024 (1) TMI 523
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....nder Section 75, late fee under Section 70 and imposition of penalties under Sections 76, 77(2) and 78 of the Finance Act, 1994. 2. The Service of Cable Operator has been introduced into Service Tax net with effect from 16.08.2002. The services of Multi System Operator has been included in the category of Cable Operator Service w.e.f. 10.09.2004 by virtue of Notification No. 25/2004-ST dated 10.09.2004. As per Section 65(21) and 65(22) of Finance Act, 1994, "cable operator" shall have the meaning assigned to it in clause (aa) of Section 2 of the Cable Television Networks (Regulation) Act, 1995 (7 of 1995); (22) "cable service" shall have the meaning assigned to it in clause (b) of section 2 of the Cable Television Networks (Regulation) Act, 1995 (7 of 1995). As per the definition contained in Cable Television Network (Regulation) Act, 1995 (7 of 1995), Cable Operator means:- "any person who provides cable service through a Television Network or otherwise controls or is responsible for the management and operation of cable television network'. Similarly, Cable Service in the Act ibid means, "the transmission by cables of a programme including re-transmission by cable of any bro....
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....sequently another Show Cause Notice dated 17.10.2011 was issued to the Assessee proposing to demand Service Tax of Rs.20,31,400/- on Cable Operator including Multi System Operator Service for the period April 2010 to June 2010. After due process of law, the Adjudicating Authority confirmed the above demands, appropriated an amount of Rs.66,74,966/- already paid by the Assessee under Cable Operator including Multi System Operator Service, besides levying interest under Section 75 after appropriating an amount of Rs.9,24,341/- paid towards interest and imposed equal penalty under Section 78 by invoking extended period from July 2006 to March 2010 and penalty under Section 76 and 77 and demanded late fee of Rs.54,000/- for delayed filing of ST-3 returns under Section 70 of the Finance Act, 1994 read with Rule 7C of the Service Tax Rules, 1994 while appropriating Rs.20,000/- already paid by the Assessee towards late fee. 5. Aggrieved by the above Order, the Assessee is on appeal before this forum. 6. Service Tax Appeal No. ST/40232/2014 has been preferred by the Department against the impugned Order-in-Original No. 07/2013 dated 07.10.2013 seeking imposition of Penalty under Section ....
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....ailable as credit, the intention to evade tax is unsustainable rendering the whole situation revenue neutral; the non-consideration of this vital fact vitiates the whole proceedings rendering the impugned order liable to be set aside. Regardless of the fact, the Assessee wished to submit that it is settled law, even in the case of clandestine removal, demand would be made only after appropriating CENVAT credit and in this regard cited the judgements in the case of (i) Rukmini Inustries Vs. Commissioner of Central Excise, Hyderabad reported in [2014 (308) ELT 649 (AP)] and (ii) Dhananiwala Textiles Vs. Commissioner of Central Exicse reported in [2001 (130) ELT 233]. 7.4 It was contended that subsequent to the above, he had received a letter dated 14.07.2010 from the department calling for details in respect of Commission received from the pay channels from 01.02.2009 to 31.03.2010 which was followed by a summon and hence both the notices were hit by limitation. 7.5 It was pointed out that ST-3 returns for the period 01.07.2006 to 31.03.2008 were submitted by registered post on 03.06.2009 itself along with a late fee. Further, it was mentioned that except the sum of Rs.6,93,446/- p....
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....stoms and Central Excise, Meerut- [2009 (5) TMI 13-SC]. (viii) Borana Pumps Vs. Commissioner of CGST, Customs & C.Ex, Jodhpur-I- [2021 (378) ELT 189 (Tri.-Del)]. (ix) Birla Corporation Ltd.- [2003 (152) ELT 428 (Tri.-Del.)]. (x) Shri Balaji Industrial Products Ltd. Vs. Commissioner of Customs & C.Ex, Jaipur- [2019 (370) ELT 280 (Tri.-Del.)]. (xi) Reliance Life Insurance Company Ltd. Vs. Commissioner - [2018 (19) GSTL J66 ( Tri.-Mumbai)]. (xii) Tally Solutions Limited Vs. Commissioner of C.Ex, Bangalore - [2020 (41) GSTL 520 (Tri-Bang.)]. (xiii) Ace Creative Learning Pvt. Ltd. Vs. Commissioner of C.T, Bengaluru South GST Commissionerate - [2021 (51) GSTL 393 (Tri.-Bang.)]. (xiv) Kanak Metal Industries Vs. Commissioner of CGST, Jodhpur - [2022 (61) GSTL 598 (Tri.-Del.)]. (xv) Nizam Sugar Factory Vs. Collector of Central Excise, AP reported in [2006 (4) TMI 127-SC ]. 8.1 The Ld. Authorised representative Shri Rudra Pratap Singh representing the Revenue reiterated the findings of the lower Adjudicating Authority and submitted that the impugned order dealt with findings covering both the Show Cause Notices and has not given separate finding for each of the SCN. It was p....
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....extended period in terms of proviso to Section 73(1) of the Finance act, 1994 is maintainable or not considering the facts of the case? (iii) Whether imposition of penalties under Section 76, 77 and 78 of the Finance Act, 1994 are justified and whether in accordance with the provisions of the law or not? 11. We find from appeal records that the Assessee commenced business on 13.07.2006 and obtained registration for Cable Operator Service from the Department on 31.07.2006 though failed to take an endorsement for BAS. A Show Cause Notice dated 18.04.2011 was issued to the Assessee proposing to demand Service Tax of Rs.2,89,84,753/- on Cable Operator service for the period from July 2006 to March 2010 and Rs.8,77,118/- on Business Auxiliary Service for the period December 2006 to March 2010. Subsequently, another Show Cause Notice dated 17.10.2011 was issued to the Assessee proposing to demand Service Tax of Rs.20,31,400 on Cable Operator service for the period April 2010 to June 2010. We further find that, out of the total demand of Rs.3,18,93,277/- in the two show cause notices, the Assessee paid an amount of Rs.68,09,156/- in cash and Rs.2,37,87,919 by way of utilising CENVAT cr....
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....judgment of the Supreme Court referred to above, wherein the Hon'ble Supreme Court in Commissioner of Income Tax, Gujarat v. S.C. Kothari [AIR 1972 SC 391] held as follows :- The approach of the High Court in the present case has been that in order to arrive at the figure of profits even of an illegal business the loss must be deducted if it has actually been incurred in the carrying on of that business. It is the net profit after deducting the out goings that can be brought to tax. It certainly seems to have been held and that view has not been shown to be incorrect that so far as the admissible deductions under S. 10(2) are concerned they cannot be claimed by the, assessee if such expenses have been incurred in either payment of a penalty for infraction of law or the execution of some illegal activity. This, however, is based on the principle that an expenditure is not deductible unless it is a commercial loss in trade and a penalty imposed for breach of the law during the course of the trade cannot be described as such. Penalties which are incurred for infraction of the law is not a normal incident of business and they fall on the assessee in some character other than that of ....
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....rect in law when duty paid goods were used in the manufacture of dutiable final products. The relevant portion of the judgement has been reproduced below:- "3.(b) Our findings are as under :- (i) There is no finding or allegation that POY, procured from M/s. Sanghi and texturised and cleared without duty determination thereon was non-duty paid. In fact the SCN and the findings link the invoices in different names issued by M/s. Sanghi as payment of duty. If that be so, it can be concluded that it is an admitted position that texturising was done on duty paid POY. There is no dispute that the assessee had filed declarations under Rule 57A, the duty paying invoices are available, goods are being found to have been brought to the factory, therefore we see no reason not to grant the Modvat credit, if on the final product (Textured yarn) duty is being determined and demanded. The bar of Rule 57E is applicable only to non duty paid or inadequate duty paid inputs and not to full duty paid inputs as in this case. Therefore, the order of denial of Modvat credit by the Commissioner is not correct in law. His reliance on the case of Mihir Textiles [1997 (92) E.L.T. 9 (S.C.)] is not correc....
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....erifying the amount of credit as furnished in the table and allow the adjustment towards liability. As such, the lower adjudicating authority is directed to requantify the duty liability after adjusting the CENVAT Credit amount. 13.1 Regarding, the invocation of extended period, on a perusal of Section 73 it is amply clear that any tax not levied or paid, short levied or short paid is recoverable from the petitioner. The show cause notice for realization of tax not levied or paid or short levied or short paid could be issued within one year from the relevant date. After amendment with effect from 28th May, 2012 by the Finance Act, 2012, the period of limitation is 18 months instead of one year. However, in view of the Proviso, where Service Tax has not been levied or paid or has been short levied or short paid or erroneously refunded by reason of fraud, collusion, willful mis-statement, suppression of facts or contravention of any of the provisions of Chapter V of the Finance Act, 1994 with intention to evade Service Tax notice may be issued within five years instead of one year. Admittedly, in this case, notice has been issued on 18th April, 2011 for the years 2006-07, 2007-08, 2....
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....rs, have never informed the Department of the same and have suppressed facts from the Department and, therefore, the extended period of time has been rightly invoked in the instant case. The above ratio is squarely applicable in this case". Considering the facts and circumstances of this case and relying upon the above decision, we have no hesitation to hold that the extended period of limitation in terms of the proviso to Sub-Section (1) of Section 73 of Chapter V of the Finance Act, 1994 is rightly invokable in this case. 13.4 Non-payment of Service Tax and non-filing of returns would tantamount to clear cut suppression of facts committed with intention to evade payment of duty, as held in the case of Lok Priya Travels Vs. Commissioner of Service Tax, Ahmedabad [2012 (25) STR 499 (Tri.-Ahmd.)] wherein it was held interalia that, "Though it was a fact that they have taken Service Tax registration, they never disclosed the nature of services rendered nor they furnished ST-3 returns, which was mandatory for a person providing taxable services. The question naturally arises that if they were not aware that they had to pay Service Tax, why should they take Service Tax registration. W....
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....04.2011 covering the period from July 2006 to March 2010. Service Tax Appeal No. 40232 of 2014 16. We find, the Department has filed an appeal vide No. 40232 of 2014 for non-imposition of penalty under Section 78 of Finance Act, 1994 for Service Tax demanded and confirmed in the second Show Cause Notice No. 98/2011-ST dated 17.10.2011 which was issued demanding and confirming Service Tax of Rs.20,31,400/- for the period from April 2010 to July 2010. Though the Show Cause Notice dated 17.10.2011 was issued invoking extended period, the adjudicating authority has imposed the penalty under Section 76 of Finance Act, 1994 and not under Section 78 of the Finance Act, 1994. The Show Cause Notice was issued covering four Months period. The appellant has paid the Service Tax dues except for one instalment of Rs.6,93,446/- on 02.06.2011. There is no justification for invoking the extended period in this case. The adjudicating authority has rightly imposed only the penalty under Section 76 of the Finance Act, 1994. We do not find any merit in Department's appeal. 17. Imposition of Penalties:- i. As has been already held that extended period is invokable as above, the assessee is liable ....