COMMISSIONER OF CENTRAL EXCISE, GUWAHAT (APPELLANT (S))
VERSUS
M/S. GLOBAL COKE PRODUCTS (RESPONDENT (S))
(ARISING OUT OF
ORDER-IN-APPEAL NO.13/SH/CE(A)/GHY/10 DATED 21.12.2010 PASSED BY COMMISSIONER OF CUSTOMS &
CENTRAL EXCISE (APPEALS), GUWAHATI , Transaction for the period from April,
2007 to March, 2008 )
1. Facts
of the case:
1.
The
Respondent are engaged in the manufacture of LM Coke. They are also registered with the Department
for availing the service of Goods Transport Agency (GTA) in relation to inward
as well as outward freight.
2.
Being the consignor/consignee, they had
discharged the service tax liability on the GTA service availed by them during
the period, April, 2007 to March, 2008.
During the said period, they had availed the CENVAT Credit on the
service tax of Rs.3,93,054/- paid on GTA service (inward freight) and utilized
the same towards the payment of service tax on the liability of GTA service
arising out of the outward freight service.
3.
A show
cause notice dated 13.10.2008 was issued to them for recovery of service tax
short paid by wrongly utilizing CENVAT Credit in discharging their service tax
liability of GTA service (outward freight), which was not admissible to them.
4.
The said
demand notice was confirmed by the Adjudicating Authority. He had also imposed a penalty of Rs.3,93,054/-
under Section 76 of the Finance Act, 1994.
5.
The
Respondent discharged the entire amount of service tax on GTA service (outward
freight) for the said period later, through GAR-7 challan on 08.07.2009.
6.
However,
they had filed an appeal before the learned Commissioner (Appeals) disputing
the penalty imposed under Section 76 of the Finance Act, 1994. The learned Commissioner (Appeals) has
allowed their appeal. Aggrieved by the
said Order, the Revenue is in Appeal before this Tribunal.
2. The Revenue reiterated that the Respondent
had paid the entire amount of service tax on GTA service (outward freight)
through GAR-7 challan, accepting their mistake only after completion of the
adjudication process. It indicates that
their intention was not to make the payment voluntarily, till the demand notice
was adjudicated against them. Therefore, the penalty imposed by the
Adjudicating Authority under Section 76 of the Finance Act, 1994, ought to be
sustained.
3. Contentions
by the Respondents:
a. There was a bona fide mistake on
the part of the Respondent in utilizing the CENVAT Credit availed on the GTA
service (inward freight) in discharging their service tax liability towards the
GTA service (outward freight) treating it as output service.
b. The Respondent were not aware of
the amendment that had been brought to the definition of output service and
other provisions of CENVAT Credit Rules, 2004 with effect from 19.04.2006, as
earlier, it was permitted for utilization of CENVAT Credit availed on the GTA
service (inward freight) in discharging the liability of GTA service (outward
freight) treating it as output service.
c. They further submitted that the entire amount
of service tax liability on the GTA
service (outward freight) had been properly determined and paid by utilizing
the CENVAT Credit availed on the GTA service (inward freight), and the payments
were duly reflected in the relevant ST-3 return filed with the Department for
the material period. Thus, there was no intention whatsoever, in not
discharging the liability of service tax on the GTA service (outward freight)
during the said period, i.e. from April, 2007 to March, 2008.
d. The amount of CENVAT Credit paid
towards the GTA service (outward freight) is still lying with the Department
and they had not claimed the refund of it, nor intended to do so.
e. In the absence of any intention
to evade or default in making payment of service tax, no penalty is imposable
under Section 76 of the Finance Act, 1994.
F .In support, they has referred to
the judgement of the Hon: Karnataka High Court in the case of CST, Bangalore
vs. Motor World [2012(27) STR 225(Kar.) and also the judgement of the Hon:
Gujarat High Court in the case of CCE & C, Daman vs. PSL Corrosion Control
Services Ltd. [2011(23) STR 116(Guj.).
4. Judgment:
a. Section
80 of the said Act stipulates that no penalty shall be imposable on an assessee
under Sections 76, 77 or 78 ibid if the assessee proves that there was
reasonable cause for the said failure.
b. The
Appellants have submitted that the lapse occurred due to their presumption that
the adjustments of output service tax against input service tax is allowable,
which has not been otherwise communicated to them by the Department.
c. Moreover,
the Appellants have owned up the liability and have already deposited the S.T.
amount along with interest. The department is not able to establish on record
that there was any intention to evade tax on the part of the Appellant who have
adduced reasonable and sufficient cause for the failure on their part to pay
the service tax.
d. Since
penalty is imposable with regard to existence of mens rea or conscious
disregard of statutory obligation, the absences of these features are material
and hence benefit would accrue to the Appellant. Moreover, there obtains an
adequate ground for invoking the provisions of Section 80 ibid to not impose
penalty prescribed under Section 76.
e.
The Hon: High Court of Karnataka in the case
of Motor World (cited supra) had observed that the imposition of penalty should
not be automatic under Sections 76 and 78 of the Finance Act, 1994. In the event sufficient cause is shown for
default in payment of service tax, Section 80 of the said Act could be
invoked. The said view had also been
echoed by the Hon: High Court of Gujarat in the case of PSL Corrosion Control
Services Ltd. (cited supra).
f.
In this case Respondent has established a
reasonable cause for failure to pay the service tax on the GTA service (outward
freight) during the period, April, 2007 to March, 2008, through the GAR-7
challan (although the said liability had already been discharged by debiting
CENVAT Credit Account during the relevant period),
g.
And hence, it is an appropriate case to invoke the
provisions of Section 80 of the Finance Act, 1994, which has been rightly
pressed into service by the ld. Commissioner (Appeals). In these circumstances, the Order passed by
the lCommissioner (Appeals) is upheld and the Appeal filed by the Revenue being
devoid of merit, is hereby dismissed.
h.
In view of the above, the penalty
imposed under Section 76 ibid is not maintainable and is liable to be set aside.
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