9911796707
Advanced Search 
TMI Blog2021 (9) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 510829/- was also found to be not deposited for the period from 1st October, 2016 to 31st March, 2017 which was otherwise to be paid by the said company under the reverse charge mechanism. The present appellant is the Director of the company as was appointed vide the Companies Resolution dated 1st December, 2016. Observing her to be the Officer responsible for the above noticed tax evasion by the aforesaid company that a Show Cause Notice bearing No.63 dated 01.04.2019 was served upon the Company as well as the appellant proposing the recovery of the aforementioned amount of Service Tax. The penalty was also proposed to be imposed on the Company as well as on the present appellant. The said proposal has been confirmed vide Order-under-challenge. Being aggrieved, the appellant is before this Tribunal. 2. I have heard Shri R. Santhanam, learned Counsel for the Appellant and Shri Ravi Kapoor, learned Authorized Representative for the Revenue. 3. It is submitted on behalf of the appellant that the Company M/s. Dynamic Team Security Pvt. Ltd. (DTSPL) had already availed the benefit of Sabka Viswas(Legacy Dispute Resolution) Scheme Rules, 2019. The Discharge Certificate /SVLDRS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted in 2021 (51) GSTL 404 (Tri. - Del.) 3. Sikar Ex-Serviceman Welfare Co-OP. Society Ltd. vs. Commr. Of C.Ex. & ST, Jodhpur reported in 2021 (52) GSTL 75 (Tri. - Del.) 5. Per-contra ld. D.R. has submitted that there is no infirmity in the order under challenge; technically once company has filed a declaration under Sabka Viswas (Legacy Dispute Resolution) Scheme Rules, 2019, there is sufficient acknowledgement of the liability towards the impugned demand. The Director of Company also had to apply under the said Scheme only. Application on behalf of Company cannot absolve the Director / the appellant of the liability as has already been confirmed against her. Ld. D.R. has also impressed upon that there is otherwise sufficient admission on the part of the present appellant that the impugned amount of Service Tax was not deposited. Her statement RUD-21 as was recorded on 29th March, 2019 where she has acknowledged that the impugned tax amount has not been deposited. Learned D.R. also brought to the notice that even the statement of Amar Singh Gautam was recorded on 20th September, 2018 (RUD-7) who has admitted that the Company had collected Service Tax amounting to Rs. 7,31,00,9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thirty days of - (i) the date of service of notice under the proviso to sub-section (1) of section 73, the penalty payable shall be fifteen per cent. of such service tax and proceedings in respect of such service tax, interest and penalty shall be deemed to be concluded; (ii) the date of receipt of the order of the Central Excise Officer determining the amount of service tax under sub-section (2) of section 73, the penalty payable shall be twenty-five per cent. of the service tax so determined : Provided also that the benefit of reduced penalty under the second proviso shall be available only if the amount of such reduced penalty is also paid within such period : Explanation. - For the purposes of this sub-section, "specified records" means records including computerized data as are required to be maintained by an assessee in accordance with any law for the time being in force or where there is no such requirement, the invoices recorded by the assessee in the books of accounts shall be considered as the specified records. (2) Where the Commissioner (Appeals), the Appellate Tribunal or the court, as the case may be, modifies the amount of service tax determined under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st proviso to section 76 or clause (i) of the second proviso to section 78, as the case may be, the proceedings pending against any person under this section shall also be deemed to have been concluded.". 8. The perusal thereof makes it abundantly clear that the penalty under these Sections can be imposed, if and only if, there has been an evasion of tax that too with utmost intent to not to pay the said tax. Reverting to the facts of the present case, the period of demand is from April 2013 to June 2017. The appellant was appointed as Director on 1st December, 2016. This apparent fact is sufficient to falsify any involvement as that of intent/knowledge of the appellant being the Director about tax evasion by the appellant for the period from April, 2013 to November, 2016. For the remaining period, no doubt, there is an admission of the appellant that the impugned demand was not paid at the relevant time, but the admission is rather more in the form of acknowledgement that the non-payment was due to unavoidable circumstances as that of grave medical illness of the spouse of the appellant who finally succumbed to that illness on 24th June, 2017. This fact has been brought to the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the decision of Apex Court in the case of Hindustan Steel Ltd. vs. State of Orissa reported in 1978 (2) E.L.T. 159 (S.C.) wherein it was held that penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Further, we find that in the SCN, it has not been established that these individuals have acted in contumacious manner so as to impose penalty. In another case titled as Continental Foundation Joint Venture vs. CCE, Chandigarh - Hon'ble Apex Court held that omission by a party to do what he might have done would not render it suppression. As far as fraud and collusion are concerned, it is evident that the intent to evade duty is build into these words. So far as the misstatement or suppression is concerned, they are clearly qualified by the word 'wilful' preceding the words "mis-statement or suppression of facts" which again means intent to evade duty. Apparently, there is no deliberate intent on part of appellant to not to pay the duty. 11. Hon'ble High Court of Delhi also in the case of Anil Kumar Mahisaria vs. Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
