Custom, Excise & Service Tax Tribunal
M/S.General Manager Telecom Bsnl vs Cce, & S.T. Lucknow on 18 April, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
SINGLE MEMBER BENCH
Court No.4
ST/Stay/3622/2012
Service Tax Appeal No.ST/2879/2012-ST[SM]
(Arising out of OIA No.244/ST/LKO/2012 dt.30.5.12 passed by the CCE(A),Lucknow)
Date of Hearing/Decision: 18/04/2013
For approval and signature:
Honble Mr.Manmohan Singh, Member (Technical)
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Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
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Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
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Whether Their Lordships wish to see the fair copy of the Order?
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Whether Order is to be circulated to the Departmental authorities?
M/s.General Manager Telecom BSNL Appellant
Vs
.
CCE, & S.T. Lucknow Respondent Present for the Appellant: Shri Yogesh Gupta Adv.
Present for the Respondent: Shri V.P. Batrs, DR Coram: Honble Mr.Manmohan Singh, Member (Technical) FINAL ORDER NO.56230/2013 PER: MANMOHAN SINGH Issue involved in this appeal is that appellant has filled its return of Service Tax for the Tax period of April 2009 to September 2009. The Service tax which was due was paid in due course and in some case it was more or short, it was required to be adjusted.
2. A statement showing the tax due confirms tax liability and amount of tax deposited, tax given as under:
Tax Period Tax payable Tax Adjusted (CENVAT) Tax to be paid Tax paid (Cash) Tax Liability Cumulative Tax liability Challan No & Date April-09 1,874,210 1,874,116 94 0 94 94 May-09 1,201,102 1,121,555 79,547 0 79,547 79,641 June-09 1,288,704 1,163,018 125,686 0 125,686 205,327 July-09 972,338 855,542 116,796 300,000 (183,204) 22,123 Ch No 560045- 5/8/2009 August-09 1,094,179 287,353 806,826 700,000 106,826 128,949 50292- 5/9/2009 Sept. -09 1,059,905 287,353 772,552 700,000+ 200,000 (127,448) 1,501 50223- 5/10/2009& 50127- 22/10/2009
3. Show cause notice dated 22/09/2010 was sent to appellant proposing for recovery of service tax amounted of Rs.3,12,053/- under Section 73 of the Finance Act 1994 along with the interest under section 75 and penalty under section 76 and 78, interest on late payment of tax for 17 days. Vide order in Appeal No. 244/ST/LKO/2012 Dated 30/05/2012 Commissioner (appeals) rejected their appeal on ground that they have not filled any application in terms of section 35 F of the Central Excise Act 1944. He further confirmed impugned Order-in-Original along with penalty and accordingly, rejected the appeal. Counsel of the appellant invited attention to the CESTAT judgment in the case of M/s Popular V/s CCE, Cochin.
The normal procedure before dismissing the appeal for non-deposit under the proviso to Section 35F of the Central Excise Act is first to pass an interim order directing the appellants to pre-deposit the amount and put them to notice. On failure to pre-deposit the amounts, the appeal may be dismissed. There is inadvertency on the part of the appellant in not filing an application seeking for waiver of pre-deposit. The appellants inadvertent mistake could have been pointed out to the appellants by the office of the Commissioner (A) by issue of a defect memo. In any case as there is no interim order passed in the matter, we are of the considered opinion that an opportunity be granted to the appellants to file an application for waiver of pre-deposit for reasons to be made explicit by them in their application. We set aside the impugned order and remand the matter to Commissioner (A) to consider the application filed by them and for giving them an opportunity to pre-deposit the amounts in terms of the interim order.
4. In similar, circumstances, where there was no filing of application under section 35F of the Central Excise Act 1994, CESTAT has dispensed with pre-deposit. Tribunal has taken very broader view and held that party should be given opportunity for filing the application under section 35F of Central Excise Act 1994 so that their view could be considered for grant of waiver of pre-deposit.
5. I have gone though the judgment and find that it contains similar facts. It is fit case need to be remanded back to Commissioner (appeal) for reviewing his Order-in-Appeal in view of conclusions drawn in above Tribunal order. Counsel has also raised certain issue regarding mistakes occurred in tax demanded and tax deposited. He has claimed there was excess payment of duty of Rs.1,83,000/- in the month of April 2009 and also Rs.1,33,448/- in the month of September. Details are per chart as below:
Month Service Tax payable Service tax paid Difference April-09 1874210.00 1874116.00 94.00 May-09 1201002.00 1121555.00 79447.00 June-09 1288704.00 1163018.00 125686.00 Aug-09 1094179.00 987353.00 106826.00 Total 5458095.00 5146042.00 312053.00
6. He submitted that if these entries are looked at their end it may result into excess payment. This will also have implication on calculation of interest. Departmental Representative also agrees with submissions of appellants. In view of facts and discussions above, case is remanded back to Commissioner (Appeal). He is decided to go through issue raised and also check these calculations including interest liability. There application under section 35 F will also be considered.
7. Commissioner (Appeal) shall do needful within two months of receipt of this order.
(Pronounced in the open court) (MANMOHAN SINGH) MEMBER (TECHNICAL) Satish ??
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