TMI Blog2019 (8) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... STOMS (GEN) MUMBAI [ 2009 (1) TMI 9 - SUPREME COURT] - It stands held in all the above decisions that onus to prove and show the satisfaction of the conditions of the Notification is on the person who claims the benefit of the same and every exemption Notification has to be read in strict sense. In the present case, the appellants have admittedly not fulfilled both the conditions of the Notification as regards payment of R D Cess before payment of service tax and have not maintained the records so as to establish the linkage between the invoices of the R D challans, as per the requirement of the Notifications - As such, we agree with the Adjudicating Authority that the appellant was not entitled to the benefit of the Notification. Time Limitation - HELD THAT:- This is not a case of any bona fide interpretation inasmuch as the wordings of the Notifications are very clear and required the recipient to pay R D Cess before payment of service tax so as to avail exemption. The appellants have not given any justifiable reasons for not paying R D Cess in time and for availing exemption without such payment of R D Cess - extended period rightly invoked. Penalty - HELD TH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brackets amount of cess paid on the said transfer of technology under the provisions of the Section 3 of the Research and Development Cess Act, 1986 (32 of 1986) , the following words, figures and brackets shall be substituted, namely: Amount of cess payable of the said transfer of technology under the provisions of the Section 3 of the Research and Development Cess Act, 1986 (32 of 1986), subject to the following conditions namely:- (A) The said amount of Research and Development Cess is paid within six months from the date of invoice or in case of associated enterprises the date of credit in the books of account; Provided that the exemption shall be available only if the Research and Development Cess is paid at the time or before the payment of the service; (B) Records of Research and Development Cess are maintained for establishing the linkage between the invoice or the credit entry, as the case may be, and the Research and Development Cess payment challan. 4. As is seen from the above Notification No.46/2011-ST dated 19/09/2011 introduced conditions in the earlier Notification No.18/2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be paid first and then the exemption equivalent to the amount of such Cess PAID would be available to the recipient. The Notification language is unambiguous and there is no room for any intendment. As rightly observed by Commissioner, the Hon ble Supreme Court in the case of Commissioner of Sales Tax, U.P. vs. Modi Sugar Mills 12 STC 182 has observed that the Court must look clearly at the words of the statute and interpret them accordingly. While interpreting the taxing statute, the importance has to be given to the clear expression used therein and no intent can be examined in case of any unambiguity in the wordings of the Notification. As such intention of the Legislature has to be gathered from the language used in Notification, as observed by the Hon ble Supreme Court in the case of Dayal Singh vs. Union of India AIR 2003 SC 1140. 8. In fact the entire case law on the subject stands dealt with by the Hon ble Supreme Court in their latest decision in the case of Commissioner of Customs (Import), Mumbai vs. Dilip Kumar Company 2018 (361) E.L.T. 577 (S.C.). It was held by the Hon ble Supreme Court that it is only when, while interpreting the statutory la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are considered to be procedural, nothing remains in the Notification so as to extend the benefit of exemption to the service tax to the tune of R D Cess paid by the importer. It is well settled law that any interpretation which renders the Notification as futile piece of Legislation has to be avoided. Inasmuch as the condition of payment of R D Cess is substantive condition of the Notification and is not relatable to any procedural aspect, we are of the view that non-fulfillment of the same rendered the appellant disentitled to the benefit of the Notification. 10. It is again the well settled position of the law that a person who claims the exemption has to prove that he satisfies all the conditions of the Notification so as to be eligible to the benefit of the same. References can be made to the Hon ble Supreme Court Constitutional Bench decision in the case of CCE vs. Harichand Shri Gopal 2010 (260) E.L.T. 3; Mysore Metal Industries vs. CC, Bombay 1988 (36) E.L.T. 369 (S.C.); Moti Ram Tolaram vs. Union of India {1999 (112) E.L.T. 749 S.C.}; Presto Industries vs. 2001 (128) E.L.T. 321 and Hotel Leela Ventures 2009 (234) E.L.T. 389 (S.C.). It stands held in all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ara 1023, it is stated thus:- A penalty imposed for a tax delinquency is a civil obligation, remedial and coercive in its nature, and is far different from the penalty for a crime or a fine or forfeiture provided as punishment for the violation of criminal or penal laws. R.S. Joshi v. Ajit Mills Ltd. (SCC p. 110, para 19) Even here we may reject the notion that a penalty or a punishment cannot be cast in the form of an absolute or non-fault liability but must be preceded by mens rea. The classical view that no mens rea, no crime‟ has long ago been eroded and several laws in India and abroad, especially regarding economic crimes and departmental penalties, have created severe punishments even where the offences have been defined to exclude mens rea. Therefore, the contention that Section 37(1) fastens a heavy liability regardless of fault has no force in depriving the forfeiture of the character of penalty. 6.13. I further find that once it is established that ingredients to attract operation of Section 78 of Finance Act, 1994 are present in a case, the discretion to quantify the amount of penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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