Custom, Excise & Service Tax Tribunal
M/S. Prachi Leathers Pvt. Ltd vs C.C.E.&S.T., Kanpur on 4 April, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI 110 066
Date of Hearing 27.03.2014
Date of Decision 04/04/2014
For Approval &Signature :
Honble Mrs. Archana Wadhwa, Member (Judicial)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
Appeal No. ST/3958/2012 -CU[SM]
[Arising out of Order-in-Appeal No.237-ST/APPL/KNP/2012, dated 08.08.2012, passed by C.C.E.&S.T.(Appeals), Kanpur]
M/s. Prachi Leathers Pvt. Ltd. Appellants
Vs.
C.C.E.&S.T., Kanpur Respondents
Appearance Shri AK Dixit, Advocate - for the appellants Shri BB Sharma, DR - for the respondents CORAM: Honble Mrs. Archana Wadhwa, Member (Judicial) Final Order No.51388, dated 04/04/2014 Per Honble Mrs. Archana Wadhwa :
After hearing both the sides, I find that the dispute in the present appeals relates to confirmation of service tax of Rs.25,491/- (Rupees twenty five thousand four hundred and ninety one only) in respect of GTA services availed by them during the period 01.04.2006 to 01.04.2007. In terms of the provisions of the Notification No.35/2004-ST, dated 03.12.2004, the liability to pay the service tax is on the recipient of the services.
2. The appellants have taken a categorical stand before the authorities below that they were paying freight charges to the transporter along with payment of service tax and transporter had paid the service tax to the Department. In as much as they did not place any evidence on record to show that the service tax stands deposited by the transporter with the Department, the demand stands confirmed against them along with penalty of identical amount under Section 75 of the Finance Act, 1994. In addition, penalty of Rs.12,745/- (Rupees twelve thousand seven hundred and forty five only) under Section 76 of the said Act.
3. Ld. Advocate appearing for the appellants has assailed the impugned order on the point of limitation. The demand pertains to the period 01.04.2006 to 01.04.2007, whereas the Show Cause Notice stands issued on 01.02.2010. Though the appellants had admittedly not filed the service tax returns with the Department, but they have pleaded a bona fide plea on their part by submitting that they were paying the service tax to the transporter, which fact is clear from the bills raised by the transporter. As such, there cannot be any mala fide on their part.
4. I agree with the above contention of the Ld. Advocate. The extended period of limitation is invocable only when there is suppression or mis-statement, etc. on the part of the assessee, with the intention to evade the payment of duty. A small amount of service tax of around Rs.25,000/- is pertaining to the period of one year. As such, it cannot be said that the appellants were indulging into any mala fide activities with the intention to evade the payment of service tax. Further, the fact that the said service tax was being paid by them to the transporter, who according to the appellants, deposited the same with the Department, though there is no evidence to that effect, also reflects upon their bona fide. In which case, the appellants cannot be said to have been profited financially in as much as the service tax stands paid by them to the transporter. In view of the foregoing, I hold that the extended period of limitation would not be available to the Revenue. Accordingly, the impugned order is set aside and the appeal is allowed with consequential relief to the appellants.
Pronounced on 04/04/2014 (Archana Wadhwa) Member (Judicial) SSK -3-