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2016 (3) TMI 11 - CESTAT BANGALORE

2016 (3) TMI 11 - CESTAT BANGALORE - 2016 (41) S.T.R. 571 (Tri. - Bang.) - Confirmation of demand for unspecified service tax amount with interest thereon - it was argued that the show-cause notice did not specify the amount of tax payable at all and therefore the original adjudicating authority could not have confirmed the demand for any amount or appropriate any amount. - levy of of penalty - Held that:- The show-cause notice simply stated that October 2003 onwards, the appellant had not filed .....

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any amount to be paid by the assessee.

It is a statutory requirement that amount to be paid has to be indicated in the show-cause notice and in the adjudication proceedings, the adjudicating authority is required to determine the amount payable as per the provisions of Section 73(2) of Finance Act, 1994. Therefore I find that the submission of learned counsel that confirmation of the demand or confirmation of the amount paid and appropriation thereto is totally incorrect and not vali .....

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G.H., Advocate For the Respondent : Shri R. Gurunathan, Addl. Commissioner(AR) ORDER PER : B.S.V.MURTHY The original adjudicating authority adjudicated the show-cause notice issued on 10/11/2005 vide OIO No.21/07/2006. He took note of the fact that the appellant had not replied to the show-cause notice and did not appear for personal hearing offered by him on 17/07/2006 and 18/07/2006 and proceeded to confirm the demand for unspecified service tax amount with interest thereon and also imposed pe .....

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ion made by the assessee at the time of personal hearing. A case was registered against the assessee as he had not filed the ST-3 returns from Oct'2003. As the Show Cause Notice was issued during Nov'2005 it has to be construed that the demand is for the period from Oct'2003 to Sept'2005. The assessee while submitting the papers to the Commissioner (Appeals) in the appeal filed by them against the Order in Original No. 122/2006 dt.21.7.2006 had enclosed a copy of the appeal to th .....

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nt Commissioner of Central Excise, Service Tax Division, Bangalore III Commissionerate vide OIO No.43/2004 dt.18.8.2004 has passed an order covering the period from 1998 -99 to 2003-04 (upto 31.3.2004) and has confirmed an amount of ₹ 17,78,060/- which has been paid by the assessee. Therefore I am not going ahead in adjudicating the amount pertaining to that period as it would amount to issue of two OIOs for the same period. In respect of the balance period to be demanded from the assessee .....

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4. 3. This order was challenged by the appellants before the learned Commissioner(Appeals) who vide his order dt. 26/10/2009, rejected the appeal for failure to deposit the amount of penalty as directed by him. Even on merits, he held that penalty is sustainable. 4. This order was challenged and the Tribunal vide Final Order No.172/2011 dt. 25/02/2011 remanded the matter to the Commissioner(Appeals) to deal with the assessee s penal liability properly and pass a speaking order. 5. Consequent to .....

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d not have confirmed the demand for any amount or appropriate any amount. He also submits that penalties under Sections 76 & 78 could not have been imposed at all in view of the observations of the original adjudicating authority himself that the assessee has paid the amount and also filed the return belatedly. He also observed that assessee has himself had quantified the amount and filed the returns. In view of the specific finding by the original adjudicating authority that show-cause noti .....

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or unspecified amount and imposition of penalty is in order. When the returns were filed belatedly, the Department could not have been aware of the services rendered by the appellant and non-payment of service tax on the same. Therefore the suppression has been correctly invoked. Nevertheless in view of the fact that returns were filed belatedly, the penalty under Section 76 is sustainable. Both sides could not indicate the dates on which the service tax was paid, whether it is after the issue o .....

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y. For a period of almost 3 years, the fact that there was another proceeding for same period and there cannot have been any repetition of the demand for the same period was not known or brought to the notice of the Department also. In fact from the OIO it emerges that the original adjudicating authority got the copy of the OIO dt. 18/08/2004 since no details were forthcoming. The show-cause notice simply stated that October 2003 onwards, the appellant had not filed the returns at all. more over .....

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