Custom, Excise & Service Tax Tribunal
Ms S Thartius Engineering Contractors vs Commissioner Of Gst&Amp;Cce(Madurai) on 13 May, 2019
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
SZB, CHENNAI
REGIONAL BENCH - Single Member 3 B3
Service Tax Appeal No. ST/40479 of 2019
(Arising out of Order-in-Appeal No. 460/2018 dated 14.12.2018 passed by the
Commissioner of Central Excise (Appeals), Madurai).
M/s. Thartius Engineering Contractors Appellant
5A/195, Second Street, Caldwell Colony,
Tuticorin-628008.
Vs.
The Commissioner of Central Excise Respondent
4, Lalbahadurshastri Marg, C.R. Building, Bibikulam, Madurai-2.
APPEARANCE:
Shri K. Sankaranarayanan, Advocate, for the appellant Shri L. Nandakumar, AC. Authorized Representative for the Respondent CORAM :
HON'BLE MR P.DINESHA, Judicial Member FINAL ORDER No. 40798 /2019 Date of Hearing: 13-05-2019 Date of Decision: 13-05-2019 Per: P. Dinesha, Heard Shri K. Sankaranarayanan, Ld. Advocate for the assessee and Shri L. Nandakumar, AC, Ld. DR for the Revenue.
2. It is the case of the assessee that the Revenue had issued a Show Cause Notice dated 15.06.2016 alleging i) availment of Cenvat Credit of 2 service tax on Goods Transport Service (GTA) received by them, ii) availment of ineligible Cenvat credit of vehicle insurance etc. and iii) availment of Cenvat credit on the misplaced invoices, all together to the extent of Rs. 1,46.590/-. Ld. Advocate further submits that with respect to the issues (i) and (iii) supra, the appellant had paid the entire tax with applicable interest after issuance of SCN but within a period of one month and thus, penalty imposed under Section 78 was not warranted. In respect of the second issue, he submits that the tax along with interest was paid before issuance of SCN and therefore as per Section 73 (1) and (3), SCN should not have been issued since proceedings before the adjudicating authority should be deemed to have been completed.
3. Per contra, Ld. DR supports the findings of the lower authorities.
4.1 I have considered the rival arguments and perused the Orders of lower authorities and the documents placed on record. There is no dispute about liability of service tax. As regards penalty, the dispute relates to 2013-14. As per Section 73 (3) payment of service tax voluntarily on the assessee's own ascertainment and intimating the same to the proper officer of such payment in writing, shall not serve any notice under sub-section (1) in respect of the amount so paid. No disputes that even though the adjudicating authority did not appropriate, yet, the remittance of tax with interest vide challan placed on record into the Government account. This only show the bonafides of the appellant, which was unfortunately not considered by the Revenue. Moreover, with respect to (ii) supra, the liability was fastened only with the introduction of negative list, from 01.04.2011 and hence, the entire demand was raised considering even the period prior to 01.04.2011, which cannot sustain. Therefore, I deem it proper to remand the matter to the file of the adjudicating authority, to pass a denovo Adjudication Order after giving an opportunity to the assessee to put forth its defence in support and to place the relevant supporting documents, who shall thereafter pass a speaking order on merits.
4.2 Having regard to the circumstances and also considering the fact that the appellant has paid the service tax, I am of the opinion on the 3 above facts, that the assessee deserves benefit of Section 73 (1) & (3) which deems further proceedings as closed, hence no penalty could be fastened. The same is accordingly set aside.
5. Appeal is partly allowed and partly remanded in the above terms.
(Order dictated and pronounced in the Open Court) (P. DINESHA) JUDICIAL MEMBER BB