9911796707
TMI Blog2014 (5) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs), Jaipur-I), (adjudicating authority) vide its order dt.21.2.2012 held ad infra- (i) I confirm under section 73(1) of the Finance Act, 1994 the demand of service tax amounting to Rs. 83,51,306/- (Rs. Eighty Three Lac Fifty One Thousand Three Hundred Six only) (including Education and S&H Education Cess) and order it to be recovered from M/s. Chhote Lal Virendra Kumar Jain, SB-116-117, Mangal Marg, Lalkothi, Jaipur along with interest in terms of Section 75 of the said Act. (II) I also impose a penalty of Rs. 83,51,306/- (Rs. Eighty Three Lac Fifty One Thousand Three Hundred Six Only) on M/s. Chhote Lal Virendra Kumar Jain, SB-116-117, Mangal Marg, Lal kothi, Jaipur under Section 78 of the Finance Act, 1994. However benefit of reduced penalty of 25% as per proviso to Section 78 ibid, is available to the noticees subject to the condition that Service Tax demand of Rs. 83,51,306/- and the interest payable thereon(on Rs. 83,51,306/-) under Section 75, is paid within thirty days from the date of communication of this order and further subject to the condition that the benefit of reduced penalty (25% of Rs. 83,51,306/-) shall be available if the amount of penalty so determined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extension of order of pre deposit passed by the Tribunal dt.20.9.2012 and that application was listed before the Tribunal on 23.1.2014. It has been alleged that the department was duly informed about the application filed before CESTAT seeking extension of the order of pre deposit passed by the Tribunal and intimation was also sent to the department regarding listing of the application before the Tribunal on 23.1.2014 and grievance of the petitioner is that despite proper intimation was sent to the department, notice u/S.87(b) of the Finance Act, 1994 was served on their Banker ICICI Bank, Nagar Nigam Branch, Jaipur to freeze account of the petitioner on 21.1.2014 and on 22.1.2014, a day prior to (23.1.2014), the date on which the application for extension of stay was coming up for hearing, the bank account of the appellant was debited and the total money of Rs. 3477714/- lying in the bank account of the petitioner was credited by the respondent to their own bank account and when the matter came before the Tribunal obviously after hearing the parties, the ld. Tribunal under its order dt.23.1.2014 granted extension and observed as under- "On condition of pre-deposit as stipulated, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal dt.20.9.2012 was automatically vacated after expiry of period of six months and accordingly the respondent was within their rights to initiate proceedings for recovery of balance amount and since the order of extension has been granted by the Tribunal on 23.1.2014,by that time money has been recovered by the department a day prior on 22.1.2014 & there could not now be a reverse entry and the effect would be that further proceedings for recovery of the balance amount could not be initiated and that is the reason for which the letter has been issued by the department dt.29.1.2014 that in the changed circumstances further proceedings initiated in reference to the notice issued u/S.87(b) of the Finance Act, 1944 be treated as withdrawn but as regard the reverse entry is concerned and prayed for by the petitioner in the present facts & circumstances of the case cannot be claimed by him. It is an admitted case of the parties that the condition which was stipulated by the Tribunal while granting waiver from pre deposit vide order dt.20.9.2012 was fully complied with by the petitioner and 15% of the tax as per the order of the Tribunal was deposited within the stipulated period and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interim order in their favour to continue by delaying the disposal of the proceedings and that certainly deprive the revenue not only of the benefit of the assessed value but at the same time of the decision on point which may have impact on other pending matters. But, at the same time, the third proviso has been inserted in Sec. 35C (2A) by the Finance Act, 2013 cannot be construed as punishing the assessees for matters which may be completely beyond their control and we can take judicial notice of pendency of appeals and work load assigned to the Tribunals and it is not possible for the Tribunal to dispose of the matters under the mandate of law. Occasionally for the reason of other administrative exigencies for which the assessee cannot be held liable and if there is no reason attributable to the assessee regarding delay in disposal of the pending appeal or non cooperation and if appeal could not have been heard which is beyond control of the petitioner/assessee at least some balance has to be made to protect the right and interest of the assessee during intervening period the appeal remain pending before the Tribunal. In the instant case, the Tribunal after hearing the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matters must be decided within the period stipulated under the mandate of law, at the same time, where definite stay order has been granted, such cases must be heard on priority basis. Before finally concluding the judgment, we would like to observe that it is a case of peculiar nature which is brought to our notice that initially the stay order was passed by the Tribunal of pre deposit on certain conditions granting waiver of pre deposit after detailed discussion on 20.9.2012 and after the notice came to be served by the department on 3.1.2014 much prior thereto application was filed by the petitioner dt.30.10.2013 before the Tribunal seeking extension of stay granted on 20.9.2012 and knowing it fully well that application is coming up before the Tribunal on 23.1.2014 such hasty steps by service of notice u/S.87(b) of the Finance Act, 1944 on 21.1.2014 freezing the bank account of the petitioner pursuant to notice dt.3.1.2014 and to recover the amount by debiting the petitioner's bank account on 22.1.2014 i.e. a day prior to the date i.e.23.1.2014 on which date the application for extension was coming up before the Tribunal cannot be appreciatedand ittantamount to overreachi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
