Custom, Excise & Service Tax Tribunal
M/S. Renuka Mangal Seva Kendra vs Commissioner Of Central Excise & ... on 26 March, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. ST/87213/2015 (Arising out of Order-in-Original No.40/ST/COMMR./2015 dt. 15.7.2015 passed by the Commissioner of Central Excise & Customs, Aurangabad) For approval and signature: Honble Shri Ramesh Nair, Member (Judicial) ======================================================
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 : No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
======================================================
M/s. Renuka Mangal Seva Kendra
:
Appellant
VS
Commissioner of Central Excise & Customs, Aurangabad.
:
Respondent
Appearance
Shri Dwarkadas S. Ladda, Advocate for Appellant
Shri A.B. Kulgod, Assistant Commissioner (A.R) for respondent
CORAM:
Honble Shri Ramesh Nair, Member (Judicial)
Date of hearing : 26/02/2016
Date of decision: 26/02/2016
ORDER NO.
The appeal is directed against Order-in-Original No. 40/ST/COMMR./2015 dt. 15.7.2015 passed by the Commissioner of Central Excise & Customs, Aurangabad whereby the Ld. Commissioner held that VCES -1 declaration dt. 31.12.2013 filed by the appellant is substantially false. He confirmed demand of Rs.3,08,672/-, interest under Section 75 and also imposed penalty of equal amount under Section 78 of the Finance Act, 1994.
2. The fact of the case is that the appellant filed VCES declaration on 31.12.2013 wherein the total dues declared was Rs.2,78,118/-. The appellant as per the provisions paid 50% of the said amount i.e. Rs.1,39,100/- on 31.12.2013. The second installment of 50% i.e. Rs.35,288/- and Rs.1,03,730/- on 13.5.2014 & 30.06.2014 respectively. On finalization of balance sheet, the Chartered Accountant pointed out from the reconciliation of the total gross receipt and it was found that the gross receipt was shown short and accordingly the total dues was declared short by Rs.35,288/-. The appellant also suo moto re-quantified and paid Rs. 35,288/-. Considering the short amount declared in the VCES declaration the balance amount along with interest which comes to Rs.40,479/- was paid on 20.12.2014. With reference to the VCES declaration, the show cause notice was issued to the appellant wherein it was proposed to treat the VCES declaration as substantially false and also proposed to demand Rs.5,86,789/- without considering the abatement as provided under Notification No. 1/2006-ST dt. 1/3/2006 to the extent of 40%. In the adjudication, the Ld. Commissioner held that due to declaration of short amount dues the declaration is substantially false. He maintaining the payment of Rs.2,78,118/- confirmed the balance amount of Rs.3,08,672/- and also demanded interest under Section 75 of the Act, and imposed penalty of equal amount under Section 78 of the Act. Being aggrieved by the impugned order the appellant is before me.
3. Shri Dwarkadas S. Ladda, Ld. Counsel for the appellant submits that they filed VCES declaration for Rs.2,78,118/- on the basis of gross receipt from the books of account. However, later on reconciliation, it was found that the gross value as well as the tax dues declared by them was short by Rs.35,288/- due to arithmetical mistake. However, re-quantifying suo moto the appellant submitted the correct figure before the department and also paid the total amount of correct dues along with interest total amounting to Rs.3,18,597/-. He submits that the Ld. Commissioner has not given any finding on the issue of abatement and decided the entire case on the basis that the declaration made by the appellant is substantially false. He submits that the gross amount receipt is inclusive of food/catering therefore they are legally entitled for the abatement of 40% as provided under Notification No. 1/2006-ST. As regard the allegation of false declaration, he submits that the mistake has occurred only due to arithmetical error, which they have corrected suo moto without pointing out by the department. The appellant have paid the entire amount of dues before the due date and in case of short payment in the first installment of 50%, they also paid interest as provided under the scheme. Therefore in these facts, it is very clear that there is no intention of making a false declaration, hence the order is not sustainable.
4. On the other hand, Shri A.B, Kulgud, Ld. Assistant Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that it is admitted fact that in the VCES declaration filed by the appellant, the total dues was wrongly declared which amounts to a false declaration under the VCES Scheme. It is a foremost condition that true and correct declaration has to be made and for any reason the declaration is found to be wrong, the same will amount to false declaration and for this reason itself the declaration is liable to be rejected.
5. I have carefully considered the submissions made by both the sides. I find that firstly the Ld. Commissioner has not given proper finding as regard the abatement available to the appellant to the extent of 40% from the gross value as provided under Notification No. 1/2006-ST. On perusal of the books of accounts of the appellant, I find that the gross receipt shown in the balance sheet/profit and loss account is inclusive of catering/food. As per the Notification No.1/2006-ST the abatement of 40% is allowed subject to condition that the gross amount charge is inclusive of food items. In view of the fact that the cost of the food item is inclusive in the gross amount charged by the appellant, they are entitled for the abatement. As regard, the charge of false declaration, I find that the mistake has occurred due to arithmetic error in quantifying the due and the same was pointed by the appellant themselves and made good by making the payment of correct amount, and for the delay in making the payment, they also paid the interest. From this fact, I do not find any intention of the appellant to make a false declaration. This is only due to arithmetical error that there is mistake in declaring the actual dues. I also find that the appellant have paid the entire amount of correct dues along with interest before the last date i.e. before 31.12.2014. Therefore, I do not find any reason why the VCES declaration should not be accepted. In view of my above discussion, I set aside the impugned order and allow the appeal of the appellant.
(Pronounced & Dictated in court) (Ramesh Nair) Member (Judicial) SM.
5Appeal No. ST/87213/2015