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Santhosh Kumar Versus The Commissioner of Central Excise, Customs & Service Tax, Mangalore

2017 (11) TMI 660 - CESTAT BANGALORE

Closure of proceedings - invocation of Section 73(4A) of FA - duty paid alongwith interest and penalty - Held that: - the appellant has paid the service tax along with interest and also paid 1% penalty and requested the department for closure of the proceedings but the department did not close the proceedings and proceeded to issue the show-cause notice and by passing the impugned order imposed various penalties. Further, I also find that the Commissioner has allowed the closure of the proceedin .....

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paid the duty, interest and 1% penalty. - Once the appellant pays duty along with interest, no show-cause notice should have been issued. - Appeal allowed - decided in favor of appellant. - ST/23558/2014 - Final Order No. 22757 / 2017 - Dated:- 9-11-2017 - Shri S. S. Garg, Judicial Member Mr. Suresh Astekar, Advocate For the Appellant Mr. N. Jagadish, AR For the Respondent ORDER Per : S. S. Garg The present appeal is directed against the impugned order passed by the Commissioner dated 2 .....

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or one M/s. Vishwas Bawa Builders and for M/s. Battahithalu Enterprises; and M/s. Santosh Kuteera, apart from some small works for individual residential buildings. Since the builders for whom the appellant was carrying on the construction of buildings were paying service tax, the appellant was under the bona fide impression that the appellant was not liable to pay service tax since his activity was in the nature of subcontract and that the main contractor viz., the builders, were discharging se .....

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ice tax and sought for the documents. The appellant furnished the copies of the balance sheets; project-wise ledger extracts for the period from October 2008 to March 2012; approved building plan of the residential projects and sample copies of construction agreement entered into with M/s. Vishwas Bawa Builders. On the advice of the officers of the Department, the appellant also took service tax registration on 16.6.2011. The appellant also calculated the service tax payable on the services rend .....

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012 Rs.6,60,369/- ₹ 80,158/- Rs.1,32,709/- Rs.8,73,236/- 3 11/10.8.2012 - Rs.6,908/- Rs.4,603/- Rs.11,511/- 4 244/25.3.2013 Rs.9,18,923/- Rs.2,09,182/- Rs.1,24,190/- Rs.12,52,295/- 5 4/12.4.2013 - Rs.438/- Rs.8,512/- Rs.8,950/- Total Rs.20,66,008/- Rs.3,99,719/- Rs.2,70,014/- Rs.27,35,741/- The appellant vide letter dated 17.4.2013 intimated the Department about the payments made by him towards service tax, interest and penalty and requested for closure of the proceedings under the provisi .....

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of the Finance Act, 1994. Further, besides confirming and appropriating the service tax paid by the appellant by invoking the extended period under proviso to Section 73(1), also imposed various penalties. Hence the present appeal. 3. Heard both the parties and perused the records. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same is contrary to the provisions of the Act as well as contrary to the binding judicial precedents. He further .....

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r passing of the impugned order) Rs.40,365/- He further submitted that once the appellant has paid the entire service tax, interest and 1% penalty in terms of Section 73(4A), the Department should not have issued the show-cause notice and the proceedings should have been concluded. He further submitted that the Commissioner in the impugned order has allowed closure of proceedings only for the period 8.4.2011 to 31.3.2012 by holding that the said proviso is only prospective and accordingly, he ha .....

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.S. Service Providers vs. CCE: 2017 (47) STR 266 has categorically held that provisions of Section 73(4A) will be applicable even for the period prior to issuance of show-cause notice. The learned counsel further submitted that this decision is squarely applicable in the present case and hence, the entire proceedings culminating into the passing of the impugned order are liable to be set aside. He also relied upon the decision in the case of Hans Interiors vs. CCE: 2016 (44) STR 607 wherein the .....

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e, then the case has to be closed under Section 73(3). Following are the decisions to support his submissions: * Toyota Boshoku Automotive India Pvt. Ltd. vs. CCE: 2016 (1) TMI 82-CESTAT Bangalore * MeritTrac Services Pvt. Ltd. vs. CST: 2016 (11) TMI 141 CESTAT Bangalore * Om Vishnu Constructions vs. CCE: 2017 (7) TMI 944- CESTAT Bangalore * T.V. Ismail Haji & Co vs. CCE: 2017 (5) TMI 766 CESTAT Bangalore * Praxair India Pvt. Ltd. vs. CCE: 2017 (7) TMI 27 CESTAT Bangalore. * Bhoruka Aluminiu .....

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to 7.4.2011 on the ground that the said demand has been confirmed under the proviso to Section 73(1) which attracts suppression of fact. He further submitted that none of the ingredients such as fraud, misstatement, suppression have been substantiated in the impugned order. He further submitted that the appellant could not have been fastened penalty of more than 25% of the service tax in question even by virtue of Section 78(4) which clearly provides that where service tax and interest is paid w .....

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e year to give the required information to the department which shows that there is suppression on his part. He further submitted that penalty imposed under Section 77 for not taking the registration as well as filing the return late warrants imposition of penalty and the Commissioner has rightly imposed the penalty. 6. After considering he submissions of both the parties and perusal of the impugned order, I find that the appellant has paid the service tax along with interest and also paid 1% pe .....

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