Custom, Excise & Service Tax Tribunal
M/S. Ncs Industries Pvt. Ltd vs The Commissioner Of Customs & Central ... on 15 March, 2013
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench - Single Member Bench
Court - II
Date of Hearing: 15.03.2013
Date of decision: 15.03.2013
Service Tax Appeal No. 2110/2010
(Arising out of Order-in-Appeal No. 17/2010 dated 07.07.2010 passed by the Commissioner of Central Excise, Service Tax and Customs, Visakhapatnam)
For approval and signature:
Honble Mr. B.S.V. Murthy, Member (Technical)
1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3. Whether their Lordship wish to see the fair copy of the Order?
Seen
4. Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. NCS Industries Pvt. Ltd. ..Appellant
Vs.
The Commissioner of Customs & Central Excise
Visakhapatnam Respondent
Appearance
None for the appellant
Mr S. Teli, Deputy Commissioner (AR) for the respondent
Coram:
Honble Mr. B.S.V. Murthy, Member (Technical)
FINAL ORDER No. 25213/2013
The appellant is engaged in providing storage and warehousing service. They filed service tax returns pertaining to the period 01.10.2007 to 31.03.2008 on 12.02.2009 whereas the due date was 25.04.2008. The taxable amount shown in the return was 2,30,39,415/- on which the service tax liability came to Rs. 28,63,880/-. In the same returns the value of exempted service was shown as Rs. 6,98,544/-. On 21.04.2009, appellant paid an amount of Rs. 25,65,747/- towards service tax. On going through the returns and calculating the service tax payable it was found by the Revenue that appellant was required to pay Rs. 28,63,880/- on the taxable service and Rs. 86,340/- on the service which were claimed as exempted and proceedings were initiated for recovery of interest and the balance amount of service tax payable after proposing to adjust the amount paid by them. Before the original adjudicating authority, it was submitted by the appellant that they had paid an amount of Rs. 25,65,747/- and had adjusted an amount of Rs. 2,98,133/- from their CENVAT credit account. They also promised to pay interest in due course. The original adjudicating authority got verification done by the jurisdictional Deputy Commissioner of the claim made by the appellant about adjusted CENVAT credit account and it was reported that in the returns filed, the CENVAT credit had not been debited. Before the original authority, even though the consultant for the appellants filed written submissions, in the written submissions also the same claim was made that an amount of Rs. 2,98,133/- was paid from a CENVAT credit account. The proceedings culminated in confirmation of demand for service tax of Rs. 29,50,220/- and after appropriating the amount already paid by them, balance amount was worked as Rs. 3,84,473/-. Interest as applicable was demanded and penalty was imposed under Section 76 of Finance Act 1994.
2. In the appeal filed by the appellant, appellant made a submission before the Commissioner (Appeals) that in fact though they had submitted copies of invoices on which they had taken credit the adjudicating authority had rejected the credit on the ground that they had not submitted the same. It was also submitted by them that they would submit copies of the bills during the personal hearing. However, the Commissioner (Appeals) observed that no documents were produced and the ground taken were totally different and rejected the appeal. Hence the appeal is before me. The matter has been coming up for final hearing from 28.09.2011 onwards. On 28.09.2011, 09.12.2011, 24.02.2012, 27.04.2012, nobody was present on behalf of the appellant even though notice was issued. On 14.09.2012 and 26.10.2012, appellants sought adjournment. Today when the matter was called, again there is a letter from the appellant-company stating that their advocate/consultant is not available because of some unavoidable personal reasons. Neither the consultant nor the company have disclosed what exactly are the compulsions.
3. According to statutory provisions, the maximum number of personal hearings that are required to give is only four and each adjournment has to be allowed by recording reasons as to why adjournment was sought and after satisfying the genuineness of the ground on which adjournment is sought. In this case appellants have failed to utilize much more number of opportunities which were extended to appear for hearing and therefore I consider it is not necessary to further adjourn the matter and therefore take up the appeal for final decision.
4. Heard the learned AR who submits that in this case the appellants filed the service tax return belatedly, paid the tax after two months of filing the returns, failed to pay the interest which they assured to pay, made a submission that they had utilized CENVAT credit for paying the balance amount of service tax of Rs. 2,98,133/- by adjusting in CENVAT credit account which was found to be totally wrong since in the return no debits were shown and verification report also stated that no adjustment before payment from CENVAT account was made. Before the original authority they did not submit any invoices and before the Commissioner (Appeals) they stated that they had submitted copies of invoices before the original authority which were contrary to the record of personal hearing available in the order-in-original. Before the Commissioner (Appeals) also no documents were available and only before the Tribunal a paper book has been filed where copies of documents have been enclosed with a worksheet showing the total amount of credit availed and without any details whatsoever. He submits that through out the proceedings appellants claims have not been found to be based on facts and therefore the appeal deserves to be rejected.
5. I have considered the submissions. I find that before the original authority, a claim was made that balance amount was paid from CENVAT credit account which was found to be wrong on verification; no CENVAT debits were shown in the CENVAT return; no proof has been produced even at the appellate stage that CENVAT credit account had been maintained at any point of time; invoices were not produced before the original authority but claimed to have been produced before the Commissioner (Appeals); the issue itself was shown as a different one from the actual dispute before the Commissioner (Appeals) as can be seen from his observation in para 7 which is reproduced below:
I have carefully gone through the case records and considered the rival contentions. The issue before me is whether the impugned order is legally sustainable. The appellant had filed the ST-3 (half-yearly) return pertaining to the period 01.10.2007 to 31.03.2008 on 12.02.2009, whereas the due date was 25.04.2008. The taxable amount shown in the return was Rs. 2,30,39,415/- on which the service tax liability was Rs. 28,63,880/-. In the same return the value of exempted services was shown as Rs. 6,98,544/-. Though the appellant intimated that this value was reflected erroneously, they have not contested the issue in their written reply furnished to the adjudicating authority. On verification it was found that the appellant had paid an amount of Rs. 25,65,747/- towards service tax on the gross value received towards the taxable service vide Challan No. 11393522 dated 21.04.2009. Though they had contended that they had adjusted the balance amount of Rs. 2,98,133/- in their CENVAT account, it was found that the same was not true. It is observed that though the appellant were given opportunities by the adjudicating authority to represent their case, they had not done so. In turn they had claimed that they submitted a letter to the effect that they have paid Rs. 25,65,747/- towards their service tax liability which on verification was found to be correct and their claim that they had adjusted rest of the amount of Rs. 2,98,133/- from their CENVAT account was proved to be false during the course of verification conducted by the department. Further though the value of exempted service was shown as Rs. 6,98,544/- and as they could not give a plausible reply in this matter, it was proposed to demand the applicable service tax amount to Rs. 86,340/-. But even this matter, the appellant could not present any convincing reply/evidence with regard to their claim that they had wrongly reflected the amount in the ST-3 returns. I also observe that the submissions made in their grounds of appeal have no relation to the subject matter. When questioned during the course of personal hearing, they could not present a convincing reply and reiterated their submissions made in their grounds of appeal. In these circumstances, the conclusions drawn by the adjudicating authority appear to be correct. I also find that the impugned order is well-reasoned one and I agree with the observations of the adjudicating authority. The appellant has not provided any evidence with regard to their claim that they have paid the amount of Rs. 2,98,133/- towards their service tax liability. Hence the findings of the adjudicating authority in the impugned order succeed and the appeal filed by the appellant is liable to be rejected. In view of my observations above, I pass the following order.
ORDER
The order-in-original is upheld and the appeal is disposed. Even before me, a paper book of invoices has been produced without any worksheet and without any details. Further on a number of occasions appellant was not present nor was represented and thereafter they have been seeking the adjournment.
6. The discussion would also show that appellant is not interested in prosecuting the appeal nor they have a case on merits. Accordingly the appeal is rejected.
(Pronounced and dictated in open Court) (B.S.V. MURTHY) MEMBER (TECHNICAL) iss