TMI Blog2019 (2) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... t there is no requirement of determination. Appeal dismissed - decided against appellant. - APPEAL No. ST/87367/2015 - A/85250/2019 - Dated:- 30-1-2019 - Dr. D.M. Misra, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Shri B. Rajchandani, Advocate, for appellant Shri Dilip Shinde, Assistant (AR), for respondent ORDER Per: Sanjiv Srivastava The appeal is directed against the Order in Appeal No SR/42/ST-1/2015 dated 14.08.2015 passed by the Commissioner of Service Tax (Appeal) Mumbai -1. By the said order Commissioner has held as follows: i. I set aside the penalty imposed in respect of Show Cause Notice SCN No V/(9)70/BFN/ SCN/ST/BLS/2010 dated 16.08.2010 listed at S No 15 of the table annexed to the impugned order. ii. I set aside the demand confirmed and penalty imposed at S No 40 of the said table in respect of C No V(BFN)4/133/ST/Adju/ST2-101771 dated 19.04.2010 as the same is already covered against S No 36 of the aforesaid table. iii. I uphold the impugned order in respect of all other show cause notices 2.1 Appellants are nationalized bank having branches across the country. Earlier they were having Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her starting with the first day after the due date till the date of actual payment of the outsatanding amount of service tax w.e.f. 18.04.2006 under the Section 76 of the Finance Act, 1994. However the said penalty under Section 76 shall not exceed the amount of Service Tax as confirmed above. 4. I impose penalty of ₹ 5000/- on the notice under Section 77 of the Finance Act, 1994, against each of those SCNs where the same has been invoked. 5. I impose penalty on the notice equivalent to the amounts confirmed against each SCN mentioned above wherein penalty under Section 78 of the Finance Act, 1994 has been invoked for deliberately suppressing the value of taxable service with an intent to evade payment of service tax. However if the assessee discharges the remaining interest and 25% of the penalty imposed in these cases within 30 days of the receipt of this order then, their liability will stand discharged thereunder. Consequently, I refrain from imposing penalty under Section 76 of the Finance Act, 1994 on the notice against these SCNs where penalties under Section 76 77 have been imposed. 2.5 Against the order of adjudicating authority appellants filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into picture and demand is made in terms of that section, to recover the duty so short paid. In case the duty is paid after the relevant date the same gets adjusted by application of the section. 4.3 In para 16, of the order in original adjudicating authority has held as follows: 16. In many cases they have only paid the service tax involved and not paid interest. In certain cases they have submitted that they paid interest along with service tax dues. It is a fact that it was binding on assessee being a public sector undertaking/Govt. body to assess the correct taxable value and discharge the service tax on dueu dates prescribed and file a return in time to the concerned authority. In all 171 cases assessee failed to arrive at proper taxable value (assessable value) by applying faulty method of calculation of taxable value thereby suppressing the cum-value of taxable services to the extent of provision made towards payment of service tax. This has resulted in short payment of service tax as demanded in these SCNs totally to the tune of ₹ 91,38,569/-. The assessee paid the service tax involved only after issuance of Show Cause cum Demand Notices. In certain cases the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice and penalty under Section 78 for suppressing the value have been proposed in the show cause notice. I further find from the para B3 of their grounds of appeal that the appellant have themselves admitted that 114 SCNs make allegation about suppression/misstatement. This is contrary to their averment that 162 SCNs out of 171 SCNs make no such allegation. I find that adjudicating authority has elaborately tabulated the amount involved, period covered and the penal provisions invoked in the individual show cause notices in the table annexed to impugned order and penal provisions under Section 78 were invoked in all the show cause notices except in the case of show cause No. V(9)70/BFN/SCN/ST/BLS/2010 dated 16.8.2010 listed at S.No.15 and show cause No. V(BFS)4/133/ST/Adju/STC/20101771 dated 19.04.2010 listed at S.No.40 of the table. The appellant has also contended that in 46 SCNs, no penalty was proposed under Section 76. I find that in all these SCNs, penalty was proposed under Section 78, except in SCN dated 16.8.2010 listed at S.No.15 of the tgable annexed to impugned order where penal provisions were not at all invoked under any section. I find the adjudicating authority ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. The appellant had never instructed the branches prior to April 2009, to make addition of any amount to the figure of commission supplied by the data centre. The amount of commission shown in ST-3 returns was clearly less than the amount of commission actually received during the relevant period and to that extent, the value of service was misdeclared. The ST-3 return in its part K requires the appellant to make following declaration: Self Assessment Memorandum (a) I/We declare that the above particulars are in accordance with the records and books maintained by me/us and are correctly stated. (b) I/We have assessed and paid the Service Tax and/or availed and distributed CENVAT credit correctly as per the provisions of the Finance Act, 1994 and the Rules made thereunder. xxxx xxxx The appellant have debited service tax liability of the preceding month from the amount of commission received which resulted in lowering the taxable value to the extent of service tax paid. The appellant signed the declaration (a) above stating that the particulars declared were in accordance with the records and books maintained by them though the value of commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 (231) E.L.T. 3 (S.C.). and the judgment in Union of India v. M/s. Rajasthan Spinning Weaving Mills, 2009 (239) E.L.T. 3 (S.C.) and submitted that the Tribunal has no jurisdiction to impose lesser penalty than the duty adjudicated to be payable. It is further submitted that mere payment of duty before issuance of show cause notice is also of no consequence. 5. At the bar it was mentioned that the issue is of vital importance in large number of matters. Considering that Shri Sreedharan, Advocate of this Court was appointed as Amicus Curiae to assist this Court. 6. The learned Amicus Curiae considering Section 11A and 11AC has submitted that in order to impose penalty two predicates are to be satisfied, firstly the duty has to be determined under sub-section (2) of Section 11A and secondly, that the duty was not paid with an intent to evade payment. It is only on satisfaction of these to predicates can penalty be imposed under Section 11AC. Referring to the judgment in Rajasthan Spinning Weaving Mills (supra) it is submitted that the judgment can be said to have been passed subsilentio in so far as the first requirement is concerned and consequently the judgment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Excise Officer shall, after considering the represent-ation, if any, made by the person or whom notice is served under sub-section (1), determine the amount of duty of excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (3)........... 9. The controversy requires consideration of Section 11AC also, which reads as under :- 11AC. Penalty for short-levy or non-levy of duty in certain cases. - Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reasons or fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section (2) of Section 11A shall also be liable to pay a penalty equal to the duty so determined : Provided that where the duty determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, for the purposes of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that therefore, the issue that before imposing penalty under Section 11AC there must be an adjudication process was neither raised nor was it decided by the learned Supreme Court and, therefore, it is sub silentio. As to what would constitute sub silentio we would gainfully refer from Solmond on Jurisprudence, Twelfth Edition, by P.J. Fitzgerald, M.A., Indian Economy Reprint, 2002, which reads as follows :- A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favor; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio. 12. Can it be said that this is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice was issued by the appellant herein in which it was stated that the assessee had cleared the finished goods either on less payment of duty or without payment of duty for certain invoices and thus violated the provisions of the Central Excise Rules read with Section 11A of the Central Excise Act. In the show cause notice, it was specifically stated that in view of the aforesaid short payment or non-payment, penalty equal to the duty payable should be paid by the assessee as provided under Section 11AC of the Central Excise Act. The extended period of limitation was also invoked by the department. By referring to proviso to Section 11A of Central Excise Act, a reply to the show cause notice was filed. The Commissioner considered the allegation against the respondent as also the reply submitted by him and on appreciation thereof, came to a finding that the charge of evasion of duty through mis-statement, suppression and fraud was proved justifying the application of extended period of five years as provided in Section 11A of the Central Excise Act, 1944. It was also held that in equal quantity of excisable goods were removed by the assessee without payment of duty. Finally, by exer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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