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2015 (8) TMI 796 - CESTAT NEW DELHI

2015 (8) TMI 796 - CESTAT NEW DELHI - 2015 (39) S.T.R. 1015 (Tri. - Del.) - Penalty u/s 77 & 78 - assessee neither obtained registration for providing taxable services during the initial period nor remitted the service tax on commercial or industrial construction service and w.e.f. 01.06.2007 on works contract service - Held that:- assessee had provided the taxable services of CICS or WCS during 2006-2007 to 2010-2011 but failed to obtain registration and remit any service tax, till 10.03.2010 - .....

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.2009 therefore leads to the clear presumption of conscious knowledge of the liability to tax and of the failure to remit the tax with an intent to evade the same, in violation of the provisions of the Act. Even prior to 26.03.2009, on a plain reading of the provisions of Section 65(25b) of the Act the assessee cannot claim to have been under any doubt as to having provided the specified taxable service.

The unambiguous provisions of Section 65(25b); the fact of the assessee having o .....

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under Sections 77 and 78 cannot be avoided. The impugned order passed by the Commissioner (Appeals) is therefore unsustainable. - Decided in favour of Revenue. - Service Tax Appeal No. 51866/2014-SM - Final Order No. 51457/2015 - Dated:- 9-4-2015 - G. Raghuram, President,J. For the Appellant : Shri P K Mishra, DR For the Respodent : Shri Mayank Garg, Adv. ORDER Per: Justice G. Raghuram: Revenue has preferred this appeal against the order of the Commissioner (Appeals), Central Excise & Servi .....

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several entities for commercial purposes. The assessee neither obtained registration for providing taxable services during the initial period nor remitted the service tax on commercial or industrial construction service; and w.e.f. 01.06.2007 on works contract service. The assessee obtained registration for providing commercial or industrial construction service only on 26.06.2009 and for works contract service on 30.03.2010. 3. The Anti Evasion Branch of the Central Excise Commissionerate, Alla .....

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ed the assessee remitted different amounts towards service tax and the interest component thereon during the period 10.03.2010 to 23.04.2011, in a total amount of ₹ 14,34,003/-. 4. A show cause notice dated 20.09.2011 was issued to the assessee proposing demand of service tax of ₹ 10,96,375/- alongwith interest thereon; appropriation of the amounts remitted by the assessee; levy of late fee under Rule 7(c) of the Service Tax Rules, 1994; and levy of penalty under Sections 77 and 78 o .....

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ts nor Revenue officials had advised the assessee about its liability to tax. Assessee further pleaded that since the service tax due alongwith the interest thereon was deposited prior to issuance of show cause notice, no proceedings should be initiated nor penalty imposed. 5. By the primary adjudication order dated 04.02.2013, the Joint Commissioner confirmed the demand of service tax and appropriated the amounts already remitted towards the demand; imposed a penalty of ₹ 10,000/- under S .....

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rder that since the assessee had deposited the service tax due from time to time during 10.03.2010 to 23.04.2011 and since assessee pleaded to have no knowledge about its liability to service tax, allegations of fraud, collusion, wilful mis-statement or suppression of facts or contravention of the provisions of the Act with intent to evade tax have not been made out. Consequent on this conclusion, while confirming the demand of service tax as recorded by the primary authority, the appellate Comm .....

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ity of which was in no doubt whatsoever on a mere reading of Section 65(25b) Section 65(105)(zzzza) of the Act; the failure of the assessee to have obtained registration; to have filed returns of Service tax periodically and within time and to remit the service tax due, amounts to violation of the provisions of the Act, inviting the application of the 1st proviso to Section 73 of the Act which is also the provision and the conditions set out in sub-section (4) of Section 73 of the Act, which exc .....

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competent officer, before service of notice on him under sub-section (1) in respect of service tax and informs the competent officer of such payment in writing, no proceedings or notice under sub-section (1) should be initiated. Sub-section (4) of this provision enacts an exception to the operation of sub-section (3) and enacts that notwithstanding anything contained under sub-section (3) where any service tax has not been paid or has been short paid by reason of fraud, collusion, wilful mis-sta .....

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7; 15,753/- and ₹ 26,533/- on 10.03.2010; ₹ 6,59,445/- and ₹ 3,420/- on 23.03.2010; ₹ 1 lac on 30.03.2010 and ₹ 6,28,852/- on 23.04.2011. The remittances should be considered in the context of the fact that the assessee obtained registration for rendition of CICS on 26.06.2009 and for WCS on 30.03.2010. Clearly therefore and certainly from 26.03.2009, the appellant must be presumed to have knowledge of being the provider of taxable services liable to remit service t .....

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been under any doubt as to having provided the specified taxable service. The appellant cannot be to heard to plead that it was ignorant of the law and that such ignorance is predicated on the fact that it did not go through the provisions of the Act Ignorancia juris non excusat. Learned Counsel for the assessee would place reliance on the judgments in CCE vs. Chemphar Drugs & Liniments - 1989 (40) ELT 276 (SC); Lubri-Chem Industries Ltd. vs. CCE, Bombay - 1994 (73) ELT 257 (SC); and in Nes .....

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f Section 65(25b); the fact of the assessee having obtained registration for rendition of CICS on 26.06.2009 but failing to remit any tax till 10.03.2009 and that too in instalments and at the assessee's own convenience, without any justification pleaded for failure to remit the service tax and interest due immediately after 26.06.2009, leads to but one inference, namely that the assessee had consciously failed to obtain registration, file returns or remit the service tax due. 10. In the cir .....

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