Court No. - 35
Case :- CENTRAL EXCISE APPEAL No. - 117 of 2018 Appellant :- Commissioner Customs Central Excise And Service Tax Respondent :- M/S Prithvee Propmart Pvt. Ltd. Counsel for Appellant :- Krishna Agarawal Counsel for Respondent :- Suyash Agarwal Hon'ble Bharati Sapru,J. Hon'ble Piyush Agrawal,J.
(Delivered by Hon'ble Piyush Agrawal, J.)
The present appeal, under section 35-G of the Central Excise Act, 1944, has been preferred against the impugned Order No. 70181/2017 dated 20.02.2017 passed by the Customs, Excise & Service Tax Appellate Tribunal, Allahabad (hereinafter referred to as, 'the Tribunal'); wherein, following questions of law have been framed:-
"1. Whether the Hon'ble CESTAT is correct in holding that in the facts & circumstances of the case there is no case of short payment of tax payable and/or under reporting of tax payable in the returns filed by the assessee, even though the party did not get themeselvwes registered under the category of "real estate agent" services, did not file ST-3 returns and also did not pay the service tax to the Government Exchequer collected by them from their clients from 2006-2007?
2. Whether the Hon'ble CESTAT is correct in allowing benefit of CENVAT credit/wrong calculation of tax amounting to Rs. 22,50,072/- without going into the facts of the case and is perverse?
3. Whether equal penalty is imposable under Section 78 of the Finance Act, 1994 in view of the fact that the assessee did not get themselves registered under the category of "real estate agent" services, did not file ST-3 returns and also did not pay the service tax to the Government Exchequer collected by them from their clients from 2006-2007?
4. Whether the penalty under Section 77 of the Finance Act, 1994 is imposable for not providing any information regarding their tax liabilities under "real estate agent" service in the ST-3 returns?
5. Any other substantial question which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
The facts of the case are that the respondent - assessee is registered with the Customs, Central Excise and Service Tax vide service tax registration no. AADCP879ONST001 for providing construction services in respect of commercial or industrial buildings and civil structure, construction of residential complex classifiable under section 65(105)(zzq) and section 65 (105)(zzzh) respectively of the Finance Act, 1994, as amended. The respondent were submitting their returns in ST-3 from time to time and were also paying taxes as and when due.
The Revenue issued a show cause notice dated 24.11.2012 on the ground that the respondent - assessee has short paid the service tax and though the returns were filed, but it has not paid service tax as per the returns. It was also alleged that though the respondent - assessee is registered for service tax, but for 'Real Estate Agent Service', it has neither obtained registration, nor has paid the service tax under the said category. The period in dispute is from 2006-07 to September, 2011.
In response to the show cause notice, a detailed reply was submitted by the respondent - assessee and it was alleged that the payment of service tax, being created only on the basis of assumptions and presumptions, there is no evidence that the respondent - assessee has received payment on account of Real Estate Agent Service. It was further submitted that the respondent - assessee had already paid the amount of tax; in other words, it has duly discharged its liability for service tax, and in view of Master Circular No. 97/8/2007 dated 23.08.2007 read with Circular/Instruction No. F-137/167/2006-CX .4 dated 03.10.2007, no proceeding can legally be initiated against the respondent - assessee if the payment of service tax has been made.
The Commissioner (Customs & Central Excise), vide order dated 06.11.2012, has confirmed the demand of Rs. 1,65,39,989/- and imposed penalty of equal amount under sections 76, 77 and 78 of the Finance Act, 1994.
Being aggrieved by the aforesaid order, an appeal was preferred by the respondent - assessee. The Tribunal, by means of the impugned order, has allowed the appeal of the respondent and has come to the conclusion that there is no case of short payment of service tax payable and/or under importing of tax payable in the returns filed by the assessee and also, set aside the penalty imposed under sections 76, 77 and 78 of the Finance Act. The Tribunal has remanded the matter to the adjudicating authority only for the limited purpose of re-conciliation of the tax paid and the verification of the amount to be admissible by the Tribunal in the foregoing paragraph of its order and for the verification of the challan allowing credit, which was not allowed earlier.
Feeling aggrieved by the aforesaid order, the Revenue has filed the present appeal.
We have heard Shri Krishna Agarawal, for the appellant and Shri Suyash Agarwal for the respondent - assessee.
It is argued by Shri Krishna Agarawal, appearing on behalf of the Revenue, that the Tribunal has set aside the order in original without giving any finding. Therefore, the order passed by the Tribunal is not only bad in law, but also perverse.
Shri Suyash Agarwal has vehemently opposed the contention advanced by the learned counsel for the appellant. It has been pointed out that the Tribunal, being the last court of fact and law, after perusing the documents/materials available on record, has rightly come to the conclusion that there was no short payment of service tax and also, there is also no case of imposition of penalty. It is further argued that the Tribunal has rightly recorded finding of fact in favour of the respondent - assessee.
On perusal of the paragraph no. 2 of the impugned order of the Tribunal, this Court finds that the Tribunal has recorded a finding of fact that the returns were filed and due taxes have been paid. In case of delayed deposit of tax, interest has also been paid by the respondent - assessee.
We are of the considered opinion that in view of Master Circular No. 97/8/2007 dated 23.08.2007 read with Circular/Instruction No. F- 137/167/2006-CX .4 dated 03.10.2007, once the taxes have been paid, along with interest, the entire proceedings under the Finance Act, 1994 are concluded.
In view of the aforesaid facts and circumstances of the present case, the appeal lacks merits and it is, accordingly, dismissed.
Questions of law have been decided in favour of the respondent - assessee and against the Revenue.
Order Date :- 30.1.2019 Amit Mishra