9911796707
TMI Blog2025 (5) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... ting to Rs. 2,17,680/- (Rs. Two Lakh Seventeen Thousand Six Hundred Eighty only) (Including Cesses) for the period from October'14 to March'15 under Section 73 (2) of the Finance Act,1994 read with Section 174(2) of the Central Goods and Services tax Act, 2017 alongwith interest payable under Section 75 of the finance Act, 1994 (ii) I hereby confirm the demand of service tax amounting to Rs. 2,13,981/- (Rs. Two Lakh thirteen Thousand Nine Hundred Eight One only) (Including Cesses) for the period from April'14 to Sept'15 under Section 73A(4) of the Finance Act,1994 read with Section 174(2) of the central Goods and Services tax Act, 2017 alongwith interest payable under Section 73B of the Finance Act, 1994 (iii) I drop balance demand of Rs.1,85,77,079/- out of total demand of Rs. 1,90,08,740/- raised against the party as discussed supra. (iv) I hereby impose a penalty of Rs. 2,17,680/- (Rs. Two Lakh Seventeen Thousand Six Hundred Eighty only) under Section 78 of the finance Act,1994 read with Section 174(2) of the Central Goods and Services tax Act, 2017 in respect of demand for the period from Oct'14 to March'15. (v) I impose penalty of Rs.10,000/- up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed additional written submissions vide their letter dated 23.11.2021. After consideration of the submissions made during the course of personal hearing and in the written submissions filed, the show cause notice was adjudicated as per the order in original referred in para 1.2 above. 2.6 Aggrieved Appellant filed the appeal before the Commissioner (Appeal) which has been dismissed as per the impugned order referred in para 1 above. 2.7 Aggrieved Appellant have filed this appeal. 3.1 I have heard Shri Pankaj Pandey, Advocate for the Appellant and Ms. Chitra Srivastava, Authorized Representative for the Revenue. 3.2 Arguing for the Appellant learned counsel submits that: In the present case the show cause notice was received by the Appellant by e-mail and not in the manner as provided in law. In absence of the service of show cause notice in the manner prescribed, the entire proceedings are non est in the eyes of law. Reliance is placed on the following decisions Metal Powder Company Ltd. [1997 (89) ELT 475] Sigma Enterprises [2014 (36) STR 985 (Ker)] Ru's Marketing and Creative Unit [2018 (1) TMI 220 - Madras High Court] Amidev Agro Care Pvt. Ltd. [2012 (6) TMI 304 - B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in addition to the amount, be liable to pay interest at such rate not below ten per cent, and not exceeding twenty-four per cent, per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette, from the first day of the month succeeding the month in which the amount ought to have been paid under this Chapter, but for the provisions contained in sub-section (4) of section 73A, till the date of payment of such amount I further find that in this regard the Board had vide its letter bearing No. 334/4/2006-TRU dated 28-2-2006, so issued with respect to clarifications regarding Budget 2006-07, inter alia clarified that: Amendments in the Act : (1) Finance Act, 1994 is being amended to :- (h) (i) provide for voluntary payment by an assessee of any amount collected in excess of the service tax leviable but not deposited with the Central Government or recovery of such excess amount. It may be noted that any amount collected as service tax, whether or not legally required to be paid, is to be deposited with the Government under this Section. This section is applicable not only to a person liable to pay service tax but also to any person, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs.2,17,680/- for the period October, 2014 to March, 2015, the Appellant has contended that the extended period of time period was not available for raising the subject demand as they had declared the said consideration in their income tax returns and on this account the whole demand being vague and further, that penalty was not imposable upon them. In this regard I find that the genesis of the subject case is vested in the third party data received from the Income Tax Department. As regarding the said data sharing between the CBIC and CBDT, I find that the same is in terms of approved policy of the Government of India to inter alia track tax evasion and in this regard earlier an MOU was signed between the CBDT and the erstwhile CBEC in the year 2015 and later, with the introduction of GST and other allied changes, in supersession of the MOU signed in 2015 another MOU was signed between the CBDT and CBIC on 21.07.2020. I find that it is on the basis of the subject data received from the Income Tax Department that the subject short/ non payment of service tax came to the notice of the Department. Had it not been for the receipt of the subject data from the Income Tax Department t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... frequency under Rule 7 of Service Tax Rules, 1994 and declare services rendered, assess tax due and make payment of Service Tax by due date - Non-payment of Service Tax came to light in pursuance to investigation- Extended period of limitation sustainable - There being suppression of fact, penalty under Section 78 of Finance Act, 1994 warranted- Interest payable - Appropriate penalties under Sections 76, 77 and 78 ibid payable. This Order was upheld by the Hon'ble Supreme Court and in its judgement the Learned Court held that Demand Limitation - Extended period invocable for failure of registered assessee to furnish details and to pay Service Tax under the Rule [2016 (44) STR J 276 (SC)]; (ii) Cairn Energy India Pvt. Ltd. Vs CCE & Cus., Visakhapatnam-II [2019 (C27) G.S.T.L. 363 Tri.- Hyd.)|: Held: Demand- Limitation - Extended period E of- Assessee violating conditions of Finance Act, 1994 and Rules and failed to pay Service Tax with intent to evade tax - Extended period of limitation applicable: [Affirmed in 2020 (32) GSTL J40 (Supreme Court)] (iii) Lakhan Singh & Co. Vs CCE, Jaipur [2016 (46) STR 297 (Trib-Delhi)] :: Held : Demand- Limitation - Suppression - Suppressi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Service Tax matters]: (viii) UOI Vs Rajasthan Spinning & Weaving Mills [2009 (238) ELT 3 (SC)] :: Held ;: Penalty - Mandatory penalty under Section 11AC of Central Excise Act, 1944 not applicable to every case of non-payment or short-payment of duty - Conditions mentioned in Section 11AC ibid should exist for penalty thereunder - Authorities having no discretion on quantum and penalty equal to duty must be imposed once Section 11AC ibid is applicable. [Parallel provisions in Service Tax matters]. 4.3 The only ground pressed by the counsel for the Appellant at the time of hearing was that in the present case the show cause notice was not served on Appellant in the manner prescribed and was delivered to them on e-mail. Without the service of the show cause notice in the manner prescribed by the statute the proceedings initiated by the said show cause notice needs to be dropped. He has replaced reliance on various case laws referred in para 3.2 above. 4.4 None of the case law, referred by the Appellant counsel is concerning with the period when the country was in grip of pandemic (COVID 19) and was under a lock down for the days together. Taking the note of the prevailing situat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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