Custom, Excise & Service Tax Tribunal
M/S. The General Manager, Telecom, Bsnl vs Cce, Raipur on 10 July, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
BENCH-DB
Date of Hearing: 10.07.2014
Service Tax Appeal No.ST/283/2009 Cu[DB]
[Arising out of Order-in-Original No. Commissioner/115/2008 dated 31.12.2008 passed by the Commissioner (Appeals), Customs & Central Excise, Raipur]
For Approval & Signature :
Honble Mr. Justice G. Raghuram, President
Honble Mr. R.K. Singh, Member (Technical)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3.
Whether their Lordships wish to see the fair copy of the order?
4.
Whether order is to be circulated to the Department Authorities?
M/s. The General Manager, Telecom, BSNL Appellant
Vs.
CCE, Raipur Respondent
Present for the Appellant : Shri Sameer Agarwal, Advocate Present for the Respondent : Shri Govind Dixit, DR FINAL ORDER NO. 52863/2014 DATED: 10.07.2014 PER: R.K. Singh The appellant filed this appeal against Order-in-Original No. Commissioner/115/2008 dated 31.12.2008 only to the extent it confirmed demand of Rs. 67,59,593/- against the appellant alongwith interest although no penalty under Sections 76 and 78 of Finance Act 1994 or under Cenvat Credit Rule was imposed.
2. The appellant contended that they are a company with operations in the remote areas and therefore they are not able to precisely assess their service tax liability by 5th of the month following the month for which the service tax is required be paid and so to be safer on a safer side they estimate and pay their service tax in a manner that it does not turn out to be less than actually playable. Thereafter when the service tax actually paid is found to be more than that actually payable, the excess amount paid is adjusted in the subsequent month. The Commissioner in his order has not disputed the fact of excess payment and its subsequent adjustment but has disallowed such adjustment on ground that proper procedure has not been followed in this regard. The appellant have contended that a mere procedural infringement should not result in denial of a substantive benefit. They have referred to the following judgements in their support:
(1) M/s. BSNL Vs. CCE Chandigarh 2010 (17) STR 209 (Tri.-Del.) where the honble CESTAT permitted such adjustment observing that the rules are not tyrants but servant of law and should not be read in a pedantic manner while the appellant is entitled substantial relief.
(2) M/s. Nirma Architects & Valuers Vs. CCE Ghaziabad 2006 (1) STR 305 (Tri.-Del.) in which similar adjustment was permitted.
(3) CCE, New Delhi Vs. Sentinel Security (P) Ltd. where the Tribunal observed that the assessee has paid extra tax and in the subsequent returns they have adjusted that amount and that although they did not follow the prescribed procedure, in the interest of justice when there is no dispute with regard to the extra payment, we do not find any infirmity in the view taken by the Commissioner (Appeal) allowing such adjustment.
(4) M/s. Bharti Cellular Ltd. Vs. Commissioner 2006 (1) STR 39 (Tri.-Del.) the CESTAT held a similar view.
3. The ld. DR did not object to the relevance of the case laws cited.
4. We have considered the facts and the submissions made in this case. As is evident from the several judgments cited above, it has been consistently held that substantial benefit can not be denied in such cases merely because some aspects of the procedure had not been followed. Indeed, such adjustment has been permitted by the CESTAT in BSNLs own case cited in the earlier para. In the present case there has been no malafide on the part of the appellant as is evident from the fact that the adjudicating authority refrained from imposing any penalty observing that the appellant acted in a bonafide manner and malafide cannot be attributed to them.
2. In the light of the forgoing the appeal is allowed and the impugned Order-in-Original is set aside, to the extent it was appealed against.
[Dictated & Pronounced in the open Court].
(Justice G. Raghuram) President (R.K. SINGH) TECHNICAL MEMBER Neha 1