9911796707
TMI Blog2019 (7) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... time of hearing of the appeal, the appellant had contested only the penalty imposed under Section 78 of the Finance Act, 1994. The show cause notice was issued to the appellant alleging short payment of service tax under the category of 'Clearing & Forwarding Services' and 'GTA Services'. Much prior to the issuance of the SCN itself, appellant had paid the entire service tax demand along with interest. This was pointed out to the Tribunal and also submitted that the appellant had filed the returns for the disputed period reflecting the taxable value as well as the tax liability. However, the Tribunal in paras-3,4, 5 and 6 of the order observed that appellant has not filed the statutory returns as mandated by law and therefore proceeded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application. She pointed out that in para-8 of the SCN, it has been clearly alleged that the appellants have not filed any returns during the disputed period. Further, in para-3 of the SCN wherein the statement of Shri V.K.Balasubramanian, Manager (Accounts) has been reproduced, it has been admitted by him that they have not filed any returns in respect of the service tax under GTA. It is also pointed out by her that in para 8.4, the original authority has noted that for the disputed period, the appellants have not filed returns correctly. She therefore submitted that the Tribunal is right in observing that the appellants have not filed returns during the disputed period and therefore has upheld the penalty imposed. 3.2 With regard to arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay not include the value of certain services which they believe is not taxable. This may be filing of incorrect returns. On perusal of para-3 of the SCN extracting the statement of Shri V.K. Balasubramanian it is seen that they have not filed ST-3 returns with respect to GTA liability. The relevant portion is reproduced as under : * Since April 2009 they have filed to pay service tax; * In respect of GTA, liability would not be more than 2 to 2.5 lakhs yearly; transporters were showing service tax liability payments in their lorry receipts to be paid by Consignor or Consignee generally, but in some cases, on behalf of customers they are paying service tax under GTA. For the said reasons, they have not filed ST-3 Returns; * Exact liabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants had not filed any returns and thus upholding the entire penalty is an error in noting the facts of the case. The Tribunal being the last fact finding authority, the facts as reflected in the records ought to be considered. Therefore, I am of the view there is apparent error on the face of record in the observations noted by the Tribunal that the appellants have not filed any returns. In these circumstances, the entire penalty imposed cannot sustain, as they had filed returns. Moreover, the demand has been confirmed on the basis of the figures reflected in the returns as well as books of account of the appellant. With regard to C&F services there was only delay in payment. I am of the view that the penalty imposed with regard to C ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
