TaxTMI 
TaxTMI 
2025 (11) TMI 511
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....d office at C-144, Awas Vikas Colony, Etawah and the corporate branch office at LGF-95, Khazana Complex, Ashiyana Kanpur Road, Lucknow, of the appellant. Further, enquiry was conducted, by way of scrutiny of the records/ documents and recording of the statements of Shri Vinod Kumar Mishra, Director of the appellant, under Section 14 of the Central Excise Act, 1944, applicable to Service Tax under Section 83 of Chapter V of the Act, revealed that the appellant had not assessed their Service Tax Liability properly and had short paid/ not paid Service Tax (including Education, Cess and Secondary & Higher Education Cess) of Rs.2,84,781/-, during the period 2011-12 to 2014-15. 2.2 Show Cause Notice dated 18.10.2016 was issued to the appellant for demanding Service Tax (including Cesses) of Rs.2,84,781/- along with interest, for imposing penalties under Sections 77(1)(d) & 78 of the 70 of the Act read with Rule 7C of the Service Tax Rules, 1994, penal provisions under Section 78A of the Act were also invoked against Shri Vinod Kumar Mishra, Director of the appellant. 2.3 The said show cause notice was adjudicated vide Order-in-Original dated 31.03.2017 and following order was passe....
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....he condonation of delay as to when their authorized signatory had received the impugned Order, enquiry was conducted with the jurisdictional Assistant Commissioner, vide letter dated 01.02.2018, for ascertaining the mode and date of communication of the impugned order to the Appellant and Shri Vinod Kumar Mishra, Director of the appellant. The Assistant Commissioner, CGST Division-1, Kanpur, vide letter dated 14.03.2018, informed that the impugned Order was served upon Shri Jay Prakash Shukla the authorized signatory of the appellant, who was authorized by Shri Vinod Kumar Mishra, on 04.05.2017, by hand and also enclosed copy of the said dated acknowledgement. 3. Discussions and Findings: I have gone through the records of the case. I find that Section 37C(1)(a) of the Central Excise Act, 1944 as made applicable to the Service Tax matters vide Section 83 of the Act, provides that any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served, by tendering the decision, order, summons or notice, or sending it by registered post -------to the person for whom it is intended or his authorized agent, if any. 3....
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....submits that in the matter so many times granted and illness application without any supporting medical certificate is no ground for an adjournment. Appeal be heard and decided on merits of the case. 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 We observe that illness without a medical certificate cannot be a ground for adjournment. Therefore, after rejecting the prayer for adjournment, we proceed to decide the appeal after hearing the learned Authorised Representative appearing for revenue. 4.3 The appeal filed by the appellant was dismissed by the First Appellate Authority by observing as follows:- "3. Discussions and Findings: I have gone through the records of the case. I find that Section 37C(1)(a) of the Central Excise Act, 1944 as made applicable to the Service Tax matters vide Section 83 of the Act, provides that any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served, by tendering the decision, order, summons or notice, or sending it by registered post ----------- to the person for whom it is intended or his aut....
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....missioner (Appeals). - (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) [hereafter in this Chapter referred to as the Commissioner (Appeals)] within sixty days from the date of the communication to him of such decision or order : Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner." 7. It is to be noted that the periods "sixty days" and "thirty days" have been substituted for "within three months" and "three months" by Act 14 of 2001, with effect from 11-5-2001. 8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period up....
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....so, the plea that because of lack of experience in business there was delay does not stand to be reason. I.T.C.'s case (supra) was rendered taking note of the peculiar background facts of the case. In that case there was no law declared by this Court that even though the Statute prescribed a particular period of limitation, this Court can direct condonation. That would render a specific provision providing for limitation rather otiose. In any event, the causes shown for condonation have no acceptable value. In that view of the matter, the appeal deserves to be dismissed which we direct. There will be no order as to costs." 4.5 Appellant have stated in the appeal filed before us that they had received the copy of the Original Authority on 25.09.2017 and have filed the appeal on 30.11.2017. Thus, the appeal filed before the First Appellate Authority was well within the period of limitation and could not have been dismissed for the reasons stated in appeal. It has been stated that in terms of Section 37C, the Jay Prakash Shukla the employee who received the order was not the authorized person and nothing has been placed on record to show that he received the copy of Order-in-Origin....
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....ppeal is neither certified copy of the order nor there is any signature of the any authority who has adjudicated in the matter. Scanned copy of the order provided by the appellant with the appeal is reproduced below:- 4.10 On perusal of last page of the order, it is evident that this order does not show any signature of the Adjudicating Authority nor there is any other detail which is relevant, is found. The only fact which is made visible on this copy of the order is that Shri Ram Shanker Tripathi has received the order on 25.09.2017, it is also not understand that as to how the signature of the person receiving the copy of order, put the signature with remark as 'received' on the copy received, it would only on the office copy maintaining with the authority giving the copy. Further, why would any person duly authorized receive an unsigned copy of order without getting the same certified. Appellant have not produced any letter by which he asked for the service of this order on him through Shri Ram Shanker Tripathi his authorized representative. 4.11 All these facts clearly shows that the appellant is trying to hide many more things, then what is stated in the case of the app....
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.... O-I-O dated 31-03- 2017 and defacto received on 25-09-2017 preferred an appeal on 20.11.2017, i.e. within two months of the actual date of receipt of the said order, before the Commissioner (Appeals), Customs, Central Excise and Service Tax. The Commissioner (Appeals), Allahabad vide his Order-in-Appeal No. 189- 190/ST/ALLD/dated 26-032018, dispatched on 13.04.2018, dismissed the appeal on the ground of delay without appreciating the facts and circumstances of the case and also without giving an opportunity of hearing to the appellant." 4.11 A copy of the last page of the order received from the concern jurisdictional authorities is reproduced bellow:- 4.12 The observations made by the Hon'ble Apex Court on the law of limitation in the case of Pathapati Subba Reddy [[2024] 4 S.C.R. 241] are relevant to the facts of this case and are reproduced below: 17. It must always be borne in mind that while construing 'sufficient cause' in deciding application under Section 5 of the Act, that on the expiry of the period of limitation prescribed for filing an appeal, substantive right in favour of a decree-holder accrues and this right ought not to be lightly disturbed. The dec....
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....vs. Ashok Kumar Chokhani & Ors.[ AIR 2009 SC 1927 14], that the merits of the case cannot be considered while dealing with the application for condonation of delay in filing the appeal. 23. In Basawaraj and Anr. vs. Special Land Acquisition Officer [(2013) 14 SCC 81], this Court held that the discretion to condone the delay has to be exercised judiciously based upon the facts and circumstances of each case. The expression 'sufficient cause' as occurring in Section 5 of the Limitation Act cannot be liberally interpreted if negligence, inaction or lack of bona fide is writ large. It was also observed that even though limitation may harshly affect rights of the parties but it has to be applied with all its rigour as prescribed under the statute as the courts have no choice but to apply the law as it stands and they have no power to condone the delay on equitable grounds. 24. It would be beneficial to quote paragraph 12 of the aforesaid decision which clinches the issue of the manner in which equilibrium has to be maintained between adopting liberal approach and in implementing the statute as it stands. Paragraph 12 reads as under: "12. It is a settled legal ....
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.... has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time; (iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally; (iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act; (v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence; (vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal; (vii) Merits of the case are not required ....
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....istered at C-144, Awas Vikas Colony, Etawah & having corporate branch office et LGE.95, Kazana Complex, Ashiyana Kanpur Road, having corporate branch ofice at widing of taxable services of"Manpower Recruitment & Supply Agency Services" were not discharging their story was hes gelesend' gele x. suppressing the correct assessable vaite. The information "vas thay ch they are providing low services (Man Po authorized persons of M/s VM Hacement Services have for Power Redes-er.( & Servis Agency) and evading payment of ser Based on intelligence that the party is engaged in providing the taxable service and suppressing the value of taxable service and thereby evading the Zonal Unit (hereinafter nent of service tax, Search was as the Officers) on 14.ghiyana, Kanpur by the team officers o premises of M/s V.M. Group of Companies, omplex, Ashiyana, Kanpur Wo authority 16 in the premises Lucknow & at C-144, Awas Vikas Colony, Etawah. The search was conducted under the authority of search warrant msu ced lt of search has been narrated is relevant to the enquiry 14.03.2016 drawn on the spot. During the search certain documents relevant to the enquiry ed. During the search of the p....
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....latest final audit report, reconciliation of bills showing collection of service ta absence of any reply further summons dated 11.05.2016, 06.06.2016, 04.07.2016 & 13.07.2016 were issued to Shri Vinod Kumar Mishra of M/s V.M. Group of Companies for appearance 00 24.05.2016, 20.06.2016. 14.07.2016 & 25.07.2016 respectively along with appearance on 24.05.2016, 200g. d.ation of service tax liability with reconciliation certain documents/records & for declaration of service tax Liability with reconciliation statement upto 31.03.2016. The said documents were no vided by the party. appearance on 22.08.2016 along with certain Et Lmeknow Zonal Unit, Lucknow o · 22.08.2016 and in his statement dated 22.08.2016 he statedisknow Zonal Unit, Lucknow on Haber of Mis An He is practicing charted accountant as partner of M/s Arsan & Co., 8/196-A, Arya Nagar, Kanpur and were the statutory auditors or the party suaterre. 2013-14 and submitted the authenticated copies of audit for F.y. 2011-12 & 2012-13. (ii) Income has been accounte n accounted for on the basis of accrual system o em of accounting, which does not include amount of service tax charged from respective which does notin au....
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....EDY India Ltd., wherein it has bee informed that the party has charged S. Tax & paid by the recipient du Zete- 12 102201-2016 of M/s Tri-Star Products Pvt. Ltd, wherein it has be Letter dated 20:08.2010hat cha ges. informed that the party has charged S. Tax & paid by the recipient during F. 2011-12 10 2015-06-16 OF Letter dated 23.09.2016 of M/s Autometer Alliance Ltd. whggein it has hes prin ths be informed that the party has charged S. Tax & paid by the red 2011-12. 12-13, 13-14 & 2015-16. informed that the party has charged & collected during F.Y. 11-12 to 15-16. 8. Leter dated 22.09.2016 of M/s Motherson Techno Tools Lad, wherein it ha as chatper da collected during F.Y. 13-14, 14-1 been informed that the party has charged & collected during 9 . Let wherein it has been informed that the party has charged & collected duris F.Y. 11-12 to 15-16. *wherein it has been informed that the party has charged & collected during F.Y. 11-12 to 15-16. the party has charged wherein it has been informed that the party has charged & collected during Fivein. it has been informed that the party has charged & colle Letter dated 26.09.2016 of M/s Durga Charitable Society, Ghaziaba....
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....bills. Therefree the party has changed & collected service tax from their clients. We.f. 01.07.2012. 14. W.e.f. 01.07.2012, the taxation of services shifted to Negative List based taxation regime wherein. "Service" has been defined under Section 65B(44) of the Finance Act, 1994 (as amended by the Finance Act, 2012) Service Tax is to be levied at the specified rate on the value of all services, other than those services specified in the negative list, provided or agreed to be provided in the taxable territory by one person/ firm/company to another and the service tax liability is upon the party and the party was liable to pay the full service tax the service tax that styises provided by them under Notification No. 30/ applicable on the services provided by them 15. From the documents i.e. Balance sheet/profit & loss statement, Form 26A replies submitted by the service recipients of the party, it appeared that the party had provides same is also evident from bills issued by the party and statement of Shri Gaurav Tiwar accountant of V.M. Group of Companies. 16. On perusal of the tax credit statement Form 26AS submitted by the $2,16.170 during the F.V. 2011-12. 2012-13. 2013-14 & 20....
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.... payment of late fee under Section 70 of Finance Act, 1994 read with Rule 7 of Service Tax RulerToolate fee under Section 70 of Finance Act, 1994 Rule 7 of Service Tax Rules, 1994. 21. The party was required to show the correct in the ST-3 retums filed by them, which they have not cor taxable service provided by them the true & correct assessable value'information about the value of taxable service provided by them in the statutory ST-3 return filed by them thus the party had suppressed material facts from the department with intent to evade payment of Service Tax and despite being engaged thereon. ung taxade services and pc for s pared the pantry of the party, the said non- thereon. Had the departmental oficers not initiated the enquiry of the party, the said non- imitationshe paymentof tax would not have been unearthed. Therefore, exter n of five years appears to be rightly invokable in this case. The party has als Page 6 of 10 in providing taxable services and receiving payment, they did not pay Service Tax due 27. Act is invokable in this case. The party appears to have evaded the payment of service tax to the Government exchequer to the tune of Rs. 2.54,1914 (in....
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....lacement ser not imposed upon Shri Vinod Kumar Mishra Director of Mis V.M () Per rvices Private Limited, 129, Manohar Nagar, Barra-2, Barra, Kancut (Nagar), Uttar Pradesh under the provisions of Section 78A of the Finance Act 1994 for willfully suppressing, hiding the facts and taxable value of tarihine A. contravention of the provisions of the Finance Act, 1994 and Rules made there under with intentiso evade payment of service tax."" CASE FOR THE PARTY rein they stated that they had made a reconciliation statement (year The party submitted reply to th 011-12 to 2014-15 in respect of Service Tax demand of Rs.2,84,781/ -. In their view, there was no such demand exist on their part. RECORD OF PERSONAL HEARING Shri Vinod Kumar Mishra, Director of the party appeared before the undersigned on 06.03.2017 and reiterated ten submission made on 17.11.2016. He explained service tax is discharged after raising final bill. DISCUSSION & FINDINGS I have gone through the case records viz records. In the instant case party is engaged in providing the recorder related to case on But investigation and gathered evidences from dieteren und that investigation agency camice med avecenc....
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.... 10 days occurred which is Section 70 of Finance Aet read with Bude c. s ce Service Tax Rules 1994. All the other returns have been filed in time. Further. I find calumet find that Shri Vinod Kumar Mishra, Director of the party is working as financial head of the company and looking after overall business of the company. In his statement dated 21.03.16 which has been made RUD-07, he has accepted this fact. As per his direction only all the invoices and bills were raised, Service Tax charged and collected though the bills from their clients, and as per his direction service tax payments are made and Sp-3 retums are filled. This fact has been accepted by him in his statement dated 21.03.16. Hence, I find that Shri Vinod Kumar Mishra has willfully suppressed the correct taxable value and short paid service tax liability with intent to evade service tax. By doing so Shri Vinod Kumar Mishra, Director of the party has contravened provisions of the Finance Ac 1994 and Service Tax Rules 1994 and made himself liable for penal action under Section 7 A of the Finance Act, 1994. In view of the above I pass the following order ORDER 1 confirm the demand of Service Tax of Rs.2,84,781....