TaxTMI 
TaxTMI 
2026 (5) TMI 1590
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....r, it was alleged that the appellant had not registered with the department nor paid the Service Tax due for the period from June 2007 to March 2014. Hence two Show Cause Notices (SCN), dated 13.5.2014 and 13.05.2014 were issued for the period from 01.06.2007 to 31.03.2012 and April 2012 to March 2014, respectively. After due process of law, the Ld. Adjudicating Authority confirmed the demand of Rs.21,69,612/- (Rs.12,75,045/- + Rs.8,94,567/-) for the two periods along with interest and imposed equal penalty. The appeal preferred by the appellant before the First Appellate Authority was partly allowed by extending the benefit of Notification No. 24/2007-ST dated 22.5.2007 and 29/2012-ST dated 20.6.2012 and was remanded to the lower authority for quantification purpose. Dis-satisfied by the said Order the Appellant is before us in the present appeal. 3. The learned Advocate Shri R. Swaranavel appeared for the appellant and Smt. Anandalakshmi Ganeshram, Ld. Authorized Representative appeared for the respondent. Submissions made by the Appellant 3.1 Shri R. Swaranavel the Ld. Advocate for the appellant submitted as follows: A. They are a society registered under the T....
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....nsustainable. As per the judgment of the Apex Court in M/s. JAIPRAKASH INDUSTRIES LTD (2002 (146) ELT 481, SC), mere failure or negligence in obtaining registration or paying duty does not justify invoking the extended period of limitation without evidence of willful suppression. He further relied on the following decisions: i. UNIWORTH TEXTILES LTD. v CCE-2013 (288) E.L.T. 161 (S.C.) ii. STEELCAST LTD. v CCE 2009 (14) S.T.R. 129 (Tri. Ahmd.) maintained in CCE V STEEL CAST LTD. 2011 (21) S.T.R. 500 (Guj.) iii. HINDALCO INDUSTRIES LTD. v CCE-2003 (161) E.L.T. 346 (Tri. - Del.) iv. SUBHASH KHANDELWAL & SONS v CCE-2011 (24) S.T.R. 461 (Tri. -Del.) v. PAHWA CHEMICALS PRIVATE LIMITED v CCE-2005 (189) E.L.T. 257 (SC) In respect of second SCN invocation of extended period is not sustainable as held by the Hon'ble Apex Court in NIZAM SUGAR FACTORY v CCE-2006 (197) E.L.T. 465 (S.C.). G. As no service tax was collected, the receipts should be treated as cum-tax value. He relied on CCE Vs ADVANTAGE MEDIA CONSULTANT (2008 (10) STR 449, Tri. Kolkata; affirmed by SC 2009 (14) STR J49), which laid down that where service tax is no....
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.... cum-tax benefit cannot be extended. D. Furthermore, the appellant admitted its tax liability only at the personal hearing stage, having earlier claimed exemption under Notification No. 25/2012-ST. This conduct was viewed as deliberate non-payment based on incorrect interpretation of the law, and case law also establishes that cum-tax benefit is not available in cases involving intentional evasion. Accordingly, the appellant's claim for cum-tax benefit was rightly rejected. E. Penalty under section 76 and 78 of FA 1994 were made mutually exclusive only w.e.f. 10.05.2008 as per the amendment made to the Finance Act hence there is no lacunae in imposing both the penalties for the earlier period and excluding the same after the amendment was made. F. The payment of duty with interest and 25% penalty as claimed by the appellant requires verification. G. The matter was remanded by the First Appellate Authority after examining the prayer made by the Appellant and now the same cannot be appealed against on the question of time bar and exemption benefit as a charitable trust, which is a mixed question of fact and law at the Second Appellate Stage. The....
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.... leave of the Tribunal under these rules : Provided that the Tribunal shall not rest its decision on any other grounds unless the party who may be affected thereby has had a sufficient opportunity of being heard on that ground. RULE 11. Rejection or amendment of memorandum of appeal. - (1) The Tribunal may, in its discretion, on sufficient cause being shown, accept a memorandum of appeal which is not accompanied by the documents referred to in rule 9 or is in any other way defective, and in such cases may require the appellant to file such documents or, as the case may be, make the necessary amendments within such time as it may allow. The Tribunal may reject the memorandum of appeal (2) referred to in sub-rule (1), if the documents referred to therein are not produced, or the amendments are not made, within the time-limit allowed. On representation of any memorandum of appeal after (3) making the necessary amendments referred to in sub-rule (1), the memorandum of appeal shall be signed and dated by the officer competent to make an the endorsement under rule 7. The President may in his discretion authorise any [(4) officer of th....
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....amined. The Apex Court while dealing with the role of appellate courts in RAMAKANT AMBALAL CHOKSI Vs HARISH AMBALAL CHOKSI & OTHERS [2024 INSC 913 / CIVIL APPEAL NO. 13001 OF 2024, Dated: 22.11.2024], examined the hierarchical functioning of the trial court and the appellate court in a criminal trial and held: "30. This Court in Shyam Sel & Power Ltd. Vs Shyam Steel Industries Ltd. reported in (2023) 1 SCC 634 observed that the hierarchy of the trial court and the appellate court exists so that the trial court exercises its discretion upon the settled principles of law. An appellate court, after the findings of the trial court are recorded, has an advantage of appreciating the view taken by the trial judge and examining the correctness or otherwise thereof within the limited area available. It further observed that if the appellate court itself decides the matters required to be decided by the trial court, there would be no necessity to have the hierarchy of courts. 31. This Court in Monsanto Technology LLC Vs Nuziveedu Seeds Ltd. reported in (2019) 3 SCC 381, observed that the appellate court should not usurp the jurisdiction of the Single Judge to decide as to w....
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.... of India Vs B.S. Agricultural Industries - AIR 2009 SUPREME COURT 2210 / Commissioner Of Customs, Mumbai Vs M/S B.V. Jewels And Ors -AIR 2005 SUPREME COURT 1231/Commissioner Customs, Central Excise & Service Tax Vs M/S Monsanto Manufacturer Pvt. Ltd. [2014 (35) STR 177 (ALL)/E.T.A. General Pvt. Ltd. Vs Additional Commissioner of C. Ex., Chennai - 2016 (44) S.T.R. 409 Mad.] 7. It has been held in several judgments of the Apex Court, including Town Municipal Council, Athani Vs Presiding Officer, Labour Court, Hubli (1970) 1 SCR 51 / (AIR 1969 SC 1335); Nityananda M. Joshi Vs Life Insurance Corporation of India (1970) 1 SCR 396 / (AIR 1970 SC 209); and Sushila Devi Vs Ramanandan Prasad (1976) 2 SCR 845 : (AIR 1976 SC 177), that the provisions of the Limitation Act, 1963 do not apply to quasi-judicial authorities such as tribunals or executive authorities which are not "courts." However, where a special law, such as the Finance Act, 1994, is silent regarding a particular aspect-for instance, the implication of limitation on jurisdiction or at the time of adjudication of issues on merits-which is specifically dealt with by the general law, the provisions of the general law would app....
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....gs focus on the conduct of the assessee. We first examine the assessment carried out allegedly without granting the benefit of cum-tax. 12. As regards the appellant's request for the grant of cum-tax benefit while calculating the duty payable, it is incumbent upon the Revenue to establish that the appellant had collected tax separately but failed to pay it to the Government, or that, after the demand was raised, the appellant recovered the same from the recipient of the service. That is not the case here. There is also nothing on record to suggest that the consideration received was not cum-duty. Accordingly, we hold that where consideration is received for services rendered, such consideration is deemed to be inclusive of service tax, and the appellant is entitled to the benefit of cum-tax while determining the taxable value. Moreover, Section 67(2) of the Finance Act, 1994 provides that where the gross amount charged is inclusive of service tax, the value of the taxable service shall be the amount which, after adding service tax, equals the gross amount charged. A coordinate Bench has taken a similar view in CCE, Patna Vs Advantage Media Consultant, [2008 (10) STR 449 (Tri.-Ko....
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....y a penalty, in addition to such service tax and interest thereon, if any, payable by him, which shall be equal to the amount of service tax so not levied or paid or short-levied or short-paid or erroneously refunded. . . . " (emphasis added) 14. For invoking Section 78, it must be established that the duty in question was short-levied or short-paid for the stated reasons, with the intent to evade payment of service tax. The law, as it has evolved, recognises that mere non-payment of service tax is not equivalent to collusion, wilful misstatement, or suppression of facts; the intention to evade payment must also be clearly established. The judgment of the Hon'ble Supreme Court in Easland Combines, Coimbatore Vs Collector of Central Excise, Coimbatore [(2003) 3 SCC 410 = 2003 (152) E.L.T. 39 (S.C.)], though rendered in the context of Central Excise law, has been applied in Service Tax matters as well. "31. It is settled law that for invoking the extended period of limitation duty should not have been paid, short levied or short paid or erroneously refunded because of either fraud, collusion, wilful misstatement, suppression of facts or contravention of any provision o....
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....priate to set aside the impugned order and remand the appeal to the file of the Original Authority with the following directions: (i) The claim of the appellant for exemption under Notification No. 25/2012-Service Tax dated 20.06.2012, should be duly examined in accordance with law. (ii) Due consideration shall also be given to CBEC Circular No. 200/10/2016-Service Tax dated 06.09.2016 while adjudicating the matter. In the event that the service is found liable to tax: (a) The demand arising from both the SCNs shall be confined to the normal period of limitation only. (b) Apart from the exclusion of value of taxable service to the extent of Municipal Taxes paid by them from the purview of Service Tax, in terms of Notification No. 24/2007-ST dated 22.05.2007 and 29/2012-ST dated 20.06.2012, permitted by the Commissioner (Appeals), the benefit of cum-duty valuation shall also be extended while computing the tax liability. The Original Authority shall follow the principles of natural justice and afford a reasonable and time bound opportunity to the appellant to state its case both orally and in writing if it so wishes, before issuing a speakin....