Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2016 (5) TMI 1244 - CESTAT CHENNAI

2016 (5) TMI 1244 - CESTAT CHENNAI - TMI - Imposition of penalty - Section 78 of the Finance Act, 1994 - Banking and other Financial Services and Sponsorship Service - received from foreign firms who do not have any office in India - liable to pay tax under reverse charge - Held that:- in the instant case the non-payment of tax was on account of bonafide belief and the Revenue had conducted Audits which would go to show that there was in fact no suppression of facts. On the other hand it is foun .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

was in operation which does not figure in the Central Excise Act, where there is a discretion not to impose penalty when reasonable cause is shown. Therefore, the ends of justice would be met by upholding the order of the Commissioner (Appeals) for the reasons stated above. - Decided against the revenue - Appeal No.ST/41851/2015 - FINAL ORDER No._ 40849 / 2016 - Dated:- 26-5-2016 - SHRI P. K. CHOUDHARY, JUDICIAL MEMBER For the Petitioner : Shri L. Pannerselvam, AC (AR) For the Respondent : Ms. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

on 66A of the Finance Act, 1994 under the category of Banking and other Financial Services to the tune of ₹ 3,27,266/- and a sum of ₹ 7,78,841/- towards Sponsorship Service was also demanded as it appeared that some of the transactions are not in the nature of donations but given under an obligation to get something in return, such as display of banners in sponsors name or entitled for certain privileges; that the respondent assessee is under the jurisdiction of LTU and is well aware .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e OIA before this Tribunal, on the ground that the case law M/s. Atwood Oceanics Pacific Ltd. Vs. CST, Ahmedabad 2013 (32) STR 756 (Tri.-Ahmd.) relied upon by the Ld. Commissioner (Appeals) has not been accepted by the department and a civil appeal has been filed in the Honble Supreme Court and the same has been admitted vide C.A. No. D7374/2013 reported in 2014 (34) STR 3172 (SC); that the respondent assessee while filing the appeal before the Ld. Commissioner (Appeals) had only disputed the l .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the assessee then show cause notice will not be issued by the department; reliance was placed on the judgment of the Apex Court in the case of UOI Vs. Dharmendra Textiles Processors 2008 (231) ELT 3 (S.C). 4. The Ld. Counsel appearing on behalf of the respondent Ms. V. UbhayaBharathi, Advocate reiterated the findings of the Ld. Commissioner (Appeals) and submitted that the tax along with the interest was paid even before issuance of the show cause notice. The fact that the show cause notice soug .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

es should have been received by the recipient in India and in the instant case, entire services have been provided outside India and not received in India and therefore, the recipient was under the impression that there were no liabilities to pay. The learned Counsel had drawn attention to Ground No.9 of the appeal filed by the Department wherein it was stated that the respondent herein had filed an appeal before the Commissioner (Appeals) only against non-imposition of penalty and not against t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ties also visited the unit several times; that the show cause notice issued without any tangible evidence and based only on inferences is vitiated by an error of law and prayed for upholding of OIA and rejection of the Revenues appeal on this score alone. In her counter, she also submitted that the Ld. AR was referring to Section 73 (4) but the same is not applicable to this case and it was not raised in their grounds of appeal. 5. In the instant case the issue is on two aspects viz., non-payme .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tioned supra along with the interest due and going by the records there is no suppression of facts with an intention to evade payment of tax. On the first aspect viz., non-payment under reverse charge the tax paid is eligible for credit to the respondent themselves and this is enough proof in the facts of the present case that there is no suppression of facts with an intention to evade payment of tax. With regard to the second issue, the contention of the Counsel for the respondent by reading th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

plexity involved in the aspect of taxability cannot be ruled out. The fact that the respondent has discharged their tax liability would only go to show that there has been no malafide intention to evade the payment of tax. 6. In this case as rightly pointed out by the Counsel for the Respondent, they had in their appeal filed before the Commissioner (Appeals) as a matter of fact raised the plea of non invocation of extended period and the Revenue s contention to the contrary is clearly erroneous .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Court in the above case that mere failure to declare does not amount to willful mis-declaration or willful suppression. There must be some positive act on the part of the party to establish either willful mis-declaration or willful suppression. All the particulars were culled out only from the respondent s record. It is also a fact that when the department culls out a case from the record of the assessee, the allegation of suppression is unsustainable. The respondent has raised a specific plea t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the disputed aspects as they were under a bonafide belief that tax was in fact not payable. In these circumstances, the imposition of penalty is unsustainable. 7. The AR had placed reliance on the judgement of the Honble Supreme Court in the case of Dharmendra Textile Processors reported in 2008 (231) ELT 3 (SC), wherein it was held that the penalty under Section 11AC of the Central Excise Act, 1944 is mandatory if larger period is invoked. Reliance was also placed on the ruling of the Madras H .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ocation of extended period, whether the payment of the adjudged dues before issuance of show cause notice would absolve the assessee from non-imposition of penalty. The Hon ble Supreme Court had in those circumstances negated the contention of the assessee holding that, a mere payment of the tax dues before issuance of show cause notice would not absolve the assessee from non-imposition of equal penalty under Section 11AC of the Central Excise Act, 1944. The Madras High Court judgement in the ca .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version