TMI Blog2019 (4) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... ds on the footing that the appellant failed to disclose the services in regard to Banking and Financial Services. . The form requires a declarant to furnish a calculation sheet separately if service tax dues is in respect of more than one service. It is in such a situation, that the declarant has to furnish separate calculation sheets. It does not mean, under any circumstances, that a declarant must necessarily disclose all the taxes dues to take the benefit of 2013 Scheme. The Commissioner committed an error in holding that any person who decides to declare tax dues under the scheme has to declare all service tax dues and there is no option to include some service and leave out some services - appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 53660 of 2015 - ST/A/50381/2019-CU[DB] - Dated:- 28-2-2019 - MR. JUSTICE DILIP GUPTA, PRESIDENT And MR. BIJAY KUMAR, MEMBER (TECHNICAL) Shri Anirudh Samant Roy, Advocate - for the appellant Shri R.K. Manjhi, DR - for the respondent ORDER Per Justice Dilip Gupta: This appeal has been filed under Section 86 of the Finance Act, 1994 (hereinafter referred to as Act ), to assail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd cum show cause notice dated 4 July 2014 to the appellant mentioning therein, that the appellant, as a recipient of taxable service of Banking and Financial Services as defined under Section 65(105)(zm) of the Act, is liable to pay service tax under reverse charge mechanism. The appellant was, therefore, called upon to show cause as to why the services provided by the banks based outside India to it should not be treated as taxable service under the category of Banking and Financial Services. It is stated that an order against the appellant was passed which is the subject matter of appeal bearing No. ST/52337/2015 before this Tribunal. 5. Thereafter, a Show Cause Notice dated 10 December, 2014 was also issued to the appellant by the Commissioner in regard to the application filed by the appellant under the 2013 Scheme mentioning therein that the appellant had declared the tax dues of ₹ 45,72,716/- on taxable receipts of ₹ 4,51,21,719/- under the category of Business Support Services and Manpower Recruitment Service received during the period from April, 2011 to June, 2012, but the appellant had failed to inform the Department about the remittance made in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 111 of the Finance Act, 2013 for default in payment of tax dues. The declarant appears liable to penal action under Section 78 of the Finance Act, 1994 read with Section 111 of the Finance Act, 2013 for reasons of suppression of facts. The declarant is also required to pay late fees for not filing half yearly/quarterly service tax returns for the period Oct., 2007 to Dec., 2012 in terms of Rule 7C of the Service Tax Rules, 1994 read with Section 70 of the Finance Act, 1994. 14. Now, therefore, M/s Raj West Power Ltd., Village Post-Bhadresh, Post Box No. 30, Distt-Barmer are hereby called upon to show cause to the Commissioner, Central Excise Commissionerate, Jodhpur (Hqrs. at Jaipur), Statue Circle, C-Scheme, Jaipur-302005 (Raj.) within 30 days of the receipt of this notice as to why: (i) The declaration filed by the declarant under VCES on 30.12.2013 should not be rejected under Section 111 of the Finance Act, 2013; (ii) The remaining tax dues i.e. Service Tax amounting to ₹ 45,72,716/- (Rs. 1,35,15,809/- minus ₹ 89,43,093/- already demanded) should not be demanded and recovered from them under proviso to Section 73(1) of the Finance Act, 1994 read with S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipal Commissioner, however, did not accept the submissions made by the appellant in response to the Show Cause Notice and passed the following order : ORDER (i) The immunity under VCES as given under Section 108(2) of the Finance Act, 2013 is not available to the assessee, since the declaration filed by them has been found substantially false under Section 111 of the Finance Act, 2013; (ii) I order recovery of remaining tax dues i.e. Service Tax amounting to ₹ 45,72,716/- (Rs. 1,35,15,809/- minus ₹ 89,43,093/- already demanded) under Section 73(2) of the Finance Act, 1994 read with Section 111 of the Finance Act, 2013 from the assessee; (iii) I order appropriation of an amount of ₹ 45,72,716/- already deposited by the assessee in Govt. Account under VCES; (iv) I order for recovery of interest at the applicable rates on the amount of service tax (tax dues) ordered to be recovered at (ii) above under Section 75 of the Finance Act, 1994 read with Section 111 of the Finance Act, 2013; (v) I do not impose penalty under Section 76 of Finance Act, 1994 upon the assessee; (vi) I impose penalty equal to the amount of service tax which pertain to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the period beginning from 1 October 2007 and ending on 31 December 2012 have to be paid under the 2013 Scheme and there is no option in this Scheme to declare service tax payable on some services and not to disclose tax dues payable on other services. Thereafter, the Principal Commissioner examined as to whether the appellant was in fact required to pay service tax under the category Banking and Financial Services towards the charges paid in foreign currency for external commercial borrowings under the reverse charge mechanism. The decision of the Mumbai Bench of the Tribunal in J.M. Financial Services Private Limited Vs. Commissioner, Service Tax, Mumbai - 2014 (36) STR 151 (Tri.-Mumbai), which holds that the activities carried out could not be subject to service tax under Banking and Financial Services and which was placed by the appellant before the Commissioner was not accepted by the Principal Commissioner for the reason the department had filed an appeal against the said order of the Tribunal before the High Court. The Principal Commissioner, therefore, held that the declaration filed by the appellant on 30 December, 2013 was substantially false and, thus, liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Budget Speech of the Hon ble Minister of Finance for the year 2013-2014 clearly supports the view that the appellant had to disclose ALL the taxable services in the declaration made on 30 December 2013; and (iv) The Show Cause Notice and the impugned order do not suffer from any illegality. 11. We have considered the submissions advanced by the learned Counsel of the appellant and the learned Representative of the Department. 12. The Budget Speech of the Hon ble Minister of Finance for the Budget 2013-2014 gives reasons as to why the 2013 scheme was introduced. The Hon ble Finance Minister stated that while there were nearly 17,00,000/- registered assesses under the Service Tax Department, only about 7,00,000/- filed returns, and it was not possible for the Government to go after each of them. Such assesees had to be motivated to file returns and pay tax dues and it is for this reason that the 2013 Scheme was being introduced under which a defaulter could avail the scheme on the condition that he filed a truthful declaration of service tax dues since 1 October 2007 and makes the payment in one or two instalments before the prescribed dates, in which case interest and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclarant for the month of January, 2013 and subsequent months shall be paid by him in accordance with the provisions of the Chapter and accordingly, interest for delay in payment thereof, shall also be payable under the Chapter. (6) The declarant shall furnish to the designated authority details of payment made from time to time under this Scheme along with a copy of acknowledgement issued to him under sub-section (2). (7) On furnishing the details of full payment of declared tax dues and the interest, if any, payable under the proviso to sub-section (4) the designated authority shall issue an acknowledgement of discharge of such dues to the declarant in such form and in such manner as may be prescribed. 108. Immunity from penalty, interest and other proceeding.- (1) Notwithstanding anything contained in any provision of the Chapter, the declarant, upon payment of the tax dues declared by him under sub-section (1) of section 107and the interest payable under the proviso to sub-section (4) thereof, shall get immunity from penalty, interest or any other proceeding under the Chapter. (2) Subject to the provisions of section 111, a declaration made under sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... audit para has been issued, whether the assessee can declare liability on an issue which is not a part of the audit para, under the VCES, 2012? Yes, declarant can declare the tax dues concerning an issue which is not a part of the audit para. 16. This issue at Serial No. 6 in regard to a case where the assessee has been audited and audit paragraph has been issued, has been clarified that the declarant can declare tax dues concerning an issue which is not a part of the audit paragraph. This would also lead to an inference that for any action to be taken under Section 111(1) of the Act, the Commissioner of Central Excise should have reasons to believe that the declaration made by declarant under the Scheme was substantially false in relation to the specific service mentioned by the declarant in the declaration and the Department cannot invoke the provisions of this section in regard to a service for which a declaration was not made, but the Department has reasons to believe that tax for that service should also have been included in the declaration. 17. In the present case, as noticed above, the appellant had declared the service tax on reimbu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.Telephone No. 4. E-mail id 5. Service Tax Code (STC No.) ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
