Custom, Excise & Service Tax Tribunal
Gupta Coal Field & Washeries Ltd vs Commissioner Of Service Tax, Nagpur on 12 April, 2012
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Application No. ST/S/1058/11
In
Appeal No. ST/367/11
(Arising out Order-in-Original No. 19/ST/2010/C dated 28.2.2011 passed by the Commissioner of Customs, Nagpur)
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. P.R. Chandrasekharan, Member (Technical)
1. Whether Press Reporters may be allowed to see No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
Gupta Coal Field & Washeries Ltd.
Appellant
Vs.
Commissioner of Service Tax, Nagpur
Respondent
Appearance:
Shri Bharat Raichandani, Advocate for the appellant Shri Y.K. Agarwal, Addl. Comm(AR) for the respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.R. Chandrasekharan, Member (Technical) Date of hearing : 12.04.2012 Date of decision : 12.04.2012 O R D E R No:..
Per: Mr. Ashok Jindal, Member (Judicial) The appellant are in appeal against the impugned order wherein penalty under Section 76 & 77 of the Finance Act, 1994 has been confirmed against the appellant.
2. The brief facts of the case are that appellant are registered with the service tax department and paying service tax and filing their service tax returns regularly. But for the period October 2008 to March 2009 they did not file their service tax returns in time and had not paid the service tax in time. On their own ascertainment on 17.12.2009, the appellant filed their returns of service tax of October 2008 to March 2009 and paid the entire service tax along with interest. On 15.4.2010, a show-cause notice was issued to appropriate the amount of service tax paid along with interest and invoking the provisions of Section 76 and 77 of the Finance Act, 1994. The show-cause notice was adjudicated and service tax along with interest was appropriated and penalty under Section 76 and 77 were also imposed on the appellant. Aggrieved from the imposition of these penalties, appellant is before us.
3. Shri Bharat Raichandani, Advocate appeared before us and submitted that as per provisions of Section 73(3) of the Finance Act, 1994, the show cause notice was not required to be issued to them. To support this contention, he relied on the Board circular no. 137/167/2006-CX4 dated 03.10.2007. Therefore he prayed that impugned order qua imposing penalty be set aside.
4. On the other hand, Shri Y.K. Agarwal, Ld. AR strongly opposed the contention of the ld. advocate and submitted that if this type of activity is allowed, nobody will pay the service tax in time and they will get the shoulder of Section 73(3) and no penalty will be imposed on the assessee.
5. Heard both sides and perused the provisions of Section 73(3) of the Finance Act, 1994 which are reproduced here as under:-
Sec. 73(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 such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid
6. On perusal of the said provisions, we find that it is a mandate of the Act that if any assessee does not pay service tax in time and does not file the return in time, but later on, on their own ascertainment they pay service tax along with interest and file the return and inform the department in writing, in that case show cause notice is not required to be issued. Same has been clarified by the Board circular cited above. Admittedly, in this case the appellant has paid service tax along with interest and filed the service tax returns on 17.12.2009. Therefore, after waiving the requirement of pre-deposit, we have taken up the appeal itself for final disposal.
7. As discussed above, the show cause notice was not required to be issued to the appellant. Therefore, we do not find any merit in the impugned order qua imposition of penalty on the appellant. Accordingly, the portion of the order imposing penalty is set aside. Appeal and stay application are disposed of in the above terms.
(Dictated in Court) (P.R. Chandrasekharan) (Ashok Jindal) Member (Technical) Member (Judicial) SR 4