CESTAT set aside the order passed by the commissioner and observed that the impugned order had denied the benefit of Section 73(3) to the appellant for the reason that the provision of Section 73 (4) of the Finance Act would be applicable.
Brief Facts:
The appellant filed an appeal against the order passed by the respondent wherein the demands on certain issues were confirmed with interest and penalty by the respondent.
Contentions of the Applicant:
The learned counsel appearing for the appellant argued that the show cause notice could not have been issued to the appellant in view of the provisions of section 73 (3) of the Finance Act as the appellant had reversed CENVAT credit and paid the interest and had also deposited the service tax with interest. It was further argued that the respondent committed illegality in taking recourse to the provisions of sub-section (4) of Section 73 as the conditions stipulated therein could not be made applicable to the present case. The counsel relied on the judgement in M/s. Rajender Kumar & Associates vs. Commissioner of Service Tax, Delhi-II which held that the registration of premises with the Service Tax Department is not a condition for availing CENVAT credit and, therefore, the demand could not have been confirmed.
Contentions of the Respondent:
The learned authorized representative appearing for the department, supported the impugned order can contended that it should not be interfered with.
Observations of the Court:
The tribunal relied on the judgement in Rajendra Kumar & Associates vs. Commissioner of Service Tax, Delhi-II and observed that it has to be held that the registration of the premises with the Service Tax Department is not a condition for availing CENVAT credit and the demand could not, therefore, have been confirmed.
It was further observed that the impugned order had denied the benefit of Section 73(3) to the appellant for the reason that the provision of Section 73 (4) of the Finance Act would be applicable.
It was further stated that the service tax returns filed by the appellant do disclose the relevant facts and it cannot be urged that there was any suppression on the part of the appellant, much less, suppression with an intent to evade payment of service tax. The court stated that no mala fide intention can be urged on the part of the appellant and this being the position, Section 73(4) cannot be invoked.
The decision of the Court:
The court set aside the impugned order and allowed the appeal.
Case Title: M/s. Oriental Insurance Company Ltd. Vs. Commissioner of Central Excise & Service Tax, LTU, New Delhi
Coram: Hon’ble Mr. Justice Dilip Gupta, President and Hon’ble Mr. Rajeev Tandon, Member (Technical)
Case No.: Service Tax No. 53391 of 2015
Advocate for the Applicant: Mr. Kunal Aggarwal
Advocate for the Respondent: Mr. Sanjay Kumar Singh
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