TaxTMI 
TaxTMI 
2025 (6) TMI 448
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....he Commissioner of Service Tax, Anna Nagar, Chennai to why: - a) Service Tax of Rs. 1,25,34,226/- (Rupees One Crore Twenty Five Lakhs Thirty Four Thousand Two Hundred and Twenty Six only) payable by them for the period from April, 2008 to March, 2011 as discussed in para 2 above should not be demanded from them under proviso to Section 73(1) of Finance Act, 1994; b) The amount of Rs. 1,19,21,798/- (Rupees One Crore Nineteen Lakhs Twenty One Thousand Seven Hundred and Ninety Eight only) paid by them as detailed in para 2 above should not be appropriated against the service tax demanded at (a) above; c) Interest at appropriate rates should not be demanded from them under Section 75 of the Act till the payment of service tax demanded above; d) Penalty under Section 76 & 78 of the Act should not be imposed on them for the contraventions mentioned above. e) Late fee of Rs. 1,03,300/-(Rupees One Lakh Three Thousand Three Hundred only) should not be demanded from them under Section 70 of the Finance Act, 1994 for failure to file the ST-3 returns for the period 2008-09 to 2010-11 within the due dates. 1.3 The above Show Cause Notice was adjudicated by the Commissioner of Central....
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....Act and in the absence of any criminal intent, defiance of law or gross negligence on their part ought not to have imposed penalty. 2.1 The Ld. Advocate Mr. N. Viswanathan representing the Appellant after reiterating the grounds has submitted that the Notice has been issued after 2 years of the payment of their tax liabilities and filing of their returns rendering the notice issued barred by limitation. 2.2 He has submitted that there was no allegation of any malafide conduct against them and when no such allegation is possible in view of the fact of the entire quantification was done on the basis of their records warrants setting aside the demand on the ground of limitation. 2.3 The Ld. Advocate has submitted that the Ld. Adjudicating Authority has erred in not considering their submissions that only Section 73A of the Act was invokable as the allegation against them was collection of the tax which was not remitted to the Government account and as such the impugned order dated 01.09.2015 could not be sustained. He further submitted that failure to consider interest payment of Rs.5,18,466/- by them in 2011 itself and further payments of the interest of Rs.15,42,286/- by challan ....
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....ble cause means something which is reasonable to a man or ordinary care or prudence". She has contended that this judgment is squarely applicable to the present case and they cannot be exonerated from the payment of penalty merely because service tax in question is paid before the issuance of the Show Cause Notice. Reliance was also placed on the judgment of the Mumbai Tribunal in the case of M/s. Avtar Company Vs. CCE, Nagpur [2014-TIOL- 287-CESTAT-MUM]. Attention was also drawn to the judgment in the case of M/s. K. Madhav Kamath Brothers& Co. [2015-TIOL-154-HC-KAR-ST] wherein the Hon'ble High Court of Karnataka held that merely because the service tax in question is paid prior to the issuance of the Show Cause Notice, the Assessee cannot be exonerated from payment of penalty. Finally, she has submitted that the Appellant did not file any returns and did not pay the service tax paid by the customers therefore it is a case of suppression of facts and invoking the extended period of time is justified warranting imposition of penalty under Section 78 of the Finance Act. Extension of the benefit of Section 80 would not arise as the Assessee did not prove that there was a reasonable c....
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.... (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, by the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as if, for the words "thirty months", the words "five years" had been substituted. Explanation.- Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of thirty months or five years, as the case may be. ... ... (3) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded, on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise Officer before service of notice on him under sub-section (1) in respect of such service tax, and inform the [Central Excise Officer] of su....
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....ommunicated this shortfall in payment of tax to the Assessee. Further, there was evidence produced for payment of interest of Rs.5,18,466/- on 25.02.2011 which was much before the issuance of the Show Cause Notice dated 10.04.2013 10. Further, as the entire payment of tax due from the Appellant has been computed on the basis of the records maintained by them and as the Appellant has paid their entire tax dues along with interest and a substantial part of the tax before the issuance of the Show Cause Notice dated 10.04.2013 consequent to Audit verification, attributing the motive of suppression or fraud or intent to evade is not justified. 11. Within a reasonable time, the Appellant has filed all the service tax returns due for the period from April 2008 to March 2011 on 17.06.2011 which is much before the issuance of the Show Cause Notice which was dated 10.04.2013. 12. In view of the above discussion, we are of the view that there is no justification for invoking the extended period and the issue should have been treated as settled under the provision of Section 73(3) of the Finance Act, 1944 as prevalent in 2011. Even if there is a minor short fall, the competent officer shoul....