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TMI Blog2017 (11) TMI 1787X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice Tax vide Registration No. AABFE314EST001 under the category of taxable services namely, "Mandap Keeper, Health Club & Fitness Centre, Beauty Parlour Service, & Dry Cleaning Service". 1.2 Based on information that the applicant had been charging and collecting service tax but not remitting the same to the Government, investigations initiated against the applicant vide letter dated 16-9-2014 and the Managing Director of the company was summoned. The applicant on 17-9-2014 produced ledger extracts pertaining to Service tax for Outlets (Restaurant Services), Outlets for Room and M. Bar (Accommodation), Banquets ((Mandap Keeper Service) IRDFD, BEV & Smoke (Catering Service) BQ & BC Hallhire (BAS) Telephone Services, TRV (Rent-a-cab) and Guest Laundry Service for the period from Oct. 2012 to August 2014. Self attested list of major customers, financial statements and Balance sheets were also submitted. A statement was recorded from Shri K.V. Kuppa Raju, Managing Director of the applicant firm on 17-9-2014 1.3 Verification of the ledger extracts and the statement of Shri K.V. Kuppa Raju revealed the following : * The applicant is engaged in activities in the nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the bar under Section 32-O of the Central Excise Act, 1944 made applicable to Service Tax matters vide Section 83 of the Finance Act, 1994. Based on the reply received against the first notice, the application was allowed to be proceeded with by the Bench vide order dated 19-6-2017 on the condition that the maintainability of the application would be decided after personal hearing. 2.2 The applicant in the application submitted, inter alia, that : * The applicant admitted and paid service tax liability of Rs. 4,45,36,366/- along with interest of Rs. 2,23,04,354/- out of the demand of Rs. 6,23,72,019/- made in the SCN. * The applicant is registered with the department vide AABFE3149EST001 for providing taxable services classifiable under Mandap Keeper's Services, Health Club & Fitness Centre, Beauty Parlour Service, & Dry Cleaning Service, Restaurant services, Catering Services, Accommodation Services, Business Auxiliary Services, Internet Services, Rent-a-cab Scheme Operator Services etc. * The demand of service tax for the extended period of limitation is not legally sustainable as the applicant had not indulged in suppression of facts. * The inability to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of CCE v. Sun India Pharmacy Pvt. Ltd. {2016 (340) E.L.T. 464 (All.)} where it was held that when penalty was not imposed on account of concealment of particulars of duty but for other reasons, the bar under Sec 32-O on subsequent application is not applicable. Jurisdictional Commissioner's Report 3.1 A copy of the application was forwarded to the jurisdictional Commissioner for his comments/report on the application. The Commissioner of Central Tax, Bangalore South vide his report C.No. IV/16/314/2014 ST Adjn, dated 10-2017 confirmed payment of service tax of Rs. 3,90,57,952/- as against the admitted liability of Rs. 4,45,36,366/- and stated that the balance amount of Rs. 54,78,410/- was stated to be paid through Cenvat credit by the applicant, though no documents were submitted for verification. 3.2 The Jurisdictional Commissioner in his report submitted, inter alia, the following : * The show cause notice for the period 04/2011 to 09/2012 issued vide C.No. IV/16/297/2012-S.T., dated 12-10-2012 had proposed penalty under Sections 76, 77 and 78 of the Finance Act, 1994 and the Settlement Commission vide its Final Order No 46/2014 -S.T., dated 21-10-2014 impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed in the Notice. * As regards the prayer for waiver of prosecution, the Settlement Commisison may take a decision as deemed fit. Hearing : 4.1 The case was heard on 2-11-2017. Applicant was represented by Shri Pradyumna G.H., Advocate and Shri N. Prakash Pai, Supdt., represented the Department. 4.2 It was submitted by the Learned Advocate that the applicant is a hotel industry engaged in providing various associated services such as Restaurant Service, Accommodation Service, Banquet Halls service etc. and registered with the Service Tax Department with effect from April, 2004; that the impugned show cause notice is relating to the period April, 2011 to Sept. 2012; that earlier there was a final order passed by the Hon'ble Settlement Commission, Chennai vide order No. 46/2014-S.T., dated 21-10-2014; that though a penalty of Rs. 15 lakhs was imposed on the applicant by the said order, as could be seen from para 5.4 of the said order the same was not imposed for any concealment on their part; that they are properly maintaining all their accounts and there was no allegation in the earlier notice that there were fabrication of accounts or any clandestine activity on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AU 314/Div-I/Gr-I, dated 10-10-2014 covering the period 10/2012 to 08/2014. This Bench, in an earlier occasion, had already settled the application S.A.(ST)/28/2014 filed by the applicant in respect of Show Cause Notice/No. IV/16/297/2012-S.T.-Adjn, dated 12-10-2012 covering the previous period 04/2011 to 09/2012 vide Final Order No. 46/2014, dated 21-10-2014 wherein the Bench had imposed a penalty of Rs. 15,00,000/- on the applicant. The facts relating to previous application and the order passed in respect of those applications had been incorporated by the applicant against Sl. No. 11(d) of prescribed proforma in respect of the present application. 5.3 The applicant has filed the present application arising out of SCN No. CAU 314/Div-I/Gr-I, dated 10-10-2014 covering the period from October 2012 to August 2014. Therefore, it is to be examined by the Bench whether the present application can be entertained in terms of provisions of Section 32-O of the Central Excise Act, 1944 as made applicable to Service Tax matters under Section 83 of the Finance Act, 1994 having already imposed penalty on the applicant in respect of their previous application. 5.4 During the hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... msp;The Bench observes that in the earlier show cause notice, penalty was proposed under Section 78 of the Finance Act, 1994 on the applicant on grounds of suppression of facts, with an intent to evade payment of Service Tax and accordingly vide Final Order No. 46/2014-S.T., dated 20-10-2014, a penalty of Rs. 15,00,000/- was imposed on the applicant under the provisions invoked in the Notice. The applicant has relied on the decision of Hon'ble High Court of Allahabad in the case of M/s. Sun India Pharmacy Pvt. Ltd. in support of their claim that penalty in the earlier order was not imposed for concealment of tax liability and therefore, the application is not hit by the bar under Section 32-O of the Central Excise Act, 1944. The Bench observes that in the case of M/s. Sun India Pharmacy Ltd., the earlier order was passed on 20-12-2013 when there was no explanation appended to the phrase "concealment of particulars of duty liability" which was then construed as concealment before the Commission. Further, the amendment by insertion of explanation to Section 32-O is to emphasize that the concealment of particulars of duty liability related to concealment made from the Officer of Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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