Home Case Index All Cases Service Tax Service Tax + Commission Service Tax - 2017 (11) TMI Commission This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (11) TMI 1787 - Commission - Service TaxMaintainability of Settlement commission application - applicability of bar under Section 32-O of the Central Excise Act, 1944 - time bar - Non-payment of service tax - the applicant had been charging and collecting service tax but not remitting the same to the Government - applicant is engaged in activities in the nature of Hotel Industry under the brand name “The Chancery Pavillion” - applicant also engaged in providing Restaurant Service, accommodation services, banquet halls, etc. - non-payment of service tax and non-filing of returns for the period subsequent to September 2012 - demand of service tax under Proviso to Section 73(1) of the Finance Act, 1994 along with appropriate interest u/s 75 of the Act, ibid and penalty u/s 76, 77 and 78 of FA - Held that:- Persual of the provisions of section 32-O clearly indicate that any subsequent application by an applicant is barred if any penalty has been imposed on them on account of concealment of duty/tax liability from the jurisdictional officers. The Bench observes that in the earlier show cause notice, penalty was proposed under Section 78 of the Finance Act, 1994 on the applicant on grounds of suppression of facts, with an intent to evade payment of Service Tax and accordingly vide Final Order No. 46/2014-S.T., dated 20-10-2014, a penalty of ₹ 15,00,000/- was imposed on the applicant under the provisions invoked in the Notice - the amendment by insertion of explanation to Section 32-O is to emphasize that the concealment of particulars of duty liability related to concealment made from the Officer of Central Excise and not from the Settlement Commission. However, in the case of the applicant the earlier order was passed on 21-10-2014 after the amendment of Section 32-O was made clarifying that once penalty is imposed on the applicant for any concealment made from the Central Excise Officer, then the bar of subsequent application under Section 32-O would apply. The Bench notes that in respect of the application relating to the Final Order No. 46/2014-S.T., dated 21-10-2014, the SCN has been issued invoking suppression of facts on the part of the applicant. Accordingly, a penalty of ₹ 15 lakhs was imposed on the applicant under the provisions invoked in the Notice including Section 78 of the Finance Act which tantamounts to imposition of penalty for concealment of Service tax liability before the jurisdictional Officer. The Bench also finds that the applicant has accepted their Service tax liability only for a part of the period (April 2013 to Aug 2014) covered by the show cause notice and claimed that the balance demand pertaining to the previous period Oct 2012 to March 2013 is time barred. The Jurisdictional Commissioner has rightly pointed out that the show cause notice has been issued well within the due date of 25-10-2014 viz. on 10-10-2014 (within 18 months from the relevant date viz. 25-4-2013), being the due date for filing ST3 Return for the period (October 2012-March 2013) - the Bench holds that the applicant has not made a true and full disclosure of their liability before the Commission which is a pre-requisite for entertaining the application. In any case, as observed by the Bench supra, the application is not maintainable as it is hit by the bar imposed under Section 32-O of the Central Excise Act, 1944 and is liable for rejection. The Bench, accordingly, holds that the application filed by the applicant, is clearly hit by the bar in terms of express provisions of Section 32-O of the Central Excise Act, 1944 as well as non-maintainable in the absence of true and full disclosure of their additional Service Tax liability as required under Section 32E(1) of the Central Excise Act, 1944 as made applicable to Service Tax matters under Section 83 of the Finance Act, 1994. The application filed by M/s. Elixir Enterprises & Hotels Pvt. Limited, Bangalore-560025 is rejected as non-maintainable.
|