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TMI Blog2015 (9) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Member (Technical),J. For the Appellant : Shri Subhash Bordia, Chartered Accountant For the Respondent : Shri S.K. Shukla, Authorised Representative ORDER Per : Mr. P.M. Saleem; The brief facts in this appeal are that on 30.06.2011, the officers of DGCEI while investigating a case against M/s. Dosti Fabricators came across the appellants who owned three barges and two tugs and were engaged in providing these barges and tugs on hire basis to various customers. Subsequently, a show cause notice F. No. DGCEI/AZU/36-88/2011-12/4020 dated 22.11.2011 was issued to the appellants on the ground that the appellants have not paid appropriate service tax in time. The adjudicating authority vide OIO dated 31.01.2013 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to financial difficulties as there was heavy outstanding debtors for an amount of ₹ 47,35,700/- as on 31.03.2011 and that there was no intention to evade tax and that they had admitted/ declared their liability in the six monthly returns, Profit and Loss accounts and balance sheets. He drew attention of the bench to the initial statement of Shri Jumma G. Sati, partner of the appellants recorded on 05.08.2011. He emphasized the relevant portion of the statement, reproduced at para 4.5 of the show cause notice dated 22.11.2011 which reads as follows:- 4.5 On being asked whether service tax was paid from time to time, he stated that they could not pay service tax within the due date due to financial constraint. However, they have pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -26,646/- Total 21,20,864/-63,630/-2,15,616/- 3. Learned Chartered Accountant pointed out that appellants had paid service tax of ₹ 21,20,864/- alongwith Cess of ₹ 63,630/- and had also paid interest of ₹ 2,15,616/- for the delayed payment of service tax at the commencement of investigation itself, and much before issuance of show cause notice. He points out that according to Appellants there was no service tax liability on a few invoices/ debit notes, many of which contentions were accepted by the adjudicating authority. He also submitted that another amount of ₹ 2,38,607/- which was refund sanctioned to the Appellants were also appropriated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in his opinion has not been paid by such person and, then, the [Central Excise Officer] shall proceed to recover such amount in the manner specified in this section, and the period of [ eighteen months ] referred to in sub-section (1) shall be counted from the date of receipt of such information of payment. Explanation [1] For the removal of doubts, it is hereby declared that the interest under section 75 shall be payable on the amount paid by the person under this sub-section and also on the amount of short payment of service tax or erroneously refunded service tax, if any, as may be determined by the [Central Excise Officer], but for this sub-section. [Explanation 2. Fro the removal of doubts, it is hereby declared that no penalty u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity to initiate proceedings for recovery of penalty under Sec. 76 of the Act. 3. Unfortunately the assessing authority as well as the appellate authority seem to think. If an assessee does not pay the tax within the stipulated time and regularly pays tax after the due date with interest. It is something which is not pardonable in law. Though the law does not say so, authorities working under the law seem to think otherwise and thus they are wasting that valuable time in proceeding against persons who are paying service tax with interest promptly. They are paid salary to act in accordance with law and to initiate proceedings against defaulters who have not paid service tax and interest in spite of service of notice calling upon them to m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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