9911796707
TMI Blog2018 (3) TMI 1747X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of order, the Applicant was directed to work out the interest liability to the satisfaction of the jurisdictional Commissioner and pay the same within 30 days of receipt of the order - The Applicant could not be expected to discharge the interest liability, unless the same is confirmed by the department, as per the orders of the Bench. The Bench feels that the Applicant has a strong case in the matter and accordingly holds, in the facts and circumstances of the case, that the 30 days period insofar as the payment of interest is concerned, is to be taken from the date of communication confirming the quantification of interest by the Departmental officer. Upon reconsideration of the Miscellaneous Application dated 11-10-2017 filed by the Applicant, the same is allowed. - Settlement Application No. S.A.(ST)/68/2016-SC - Miscellaneous Order No. 1/2018-ST - Dated:- 6-3-2018 - Shri C. Rajendiran, Vice-Chairman and R.D. Negi, Member ORDER Brief facts : M/s. Flight Raja Travels Pvt. Ltd., Level 4, Block B (Magnolia), Manyata Embassy Business Park, Outer Ring Road, Nagawara, Bangalore-560045 (hereinafter referred to as The Applicant ), holder of Service Tax Regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was a delay of 4 days in the payment of interest, advised the jurisdictional Commissioner, vide letter dated 21-4-2017, to take necessary action in accordance with law. 1.3 Thereafter, the Applicant filed a miscellaneous application for condonation of delay in making the payment vide their application dated 11-10-2017, received in this office on 5-12-2017. In the application, they submitted, inter alia, that the Finance department of the Applicant company received the order dated 23-2-2017 on 6-3-2017 and they were informed by the security personnel that the order was received on 5-3-2017; that they paid the Service Tax and penalty on 14-3-2017 and interest on 4-4-2017 and that they received a notice from the Superintendent of Central Taxes, Range B, North Division 7, North Commissionerate, Bangalore, vide O.C. No. 91/2017, dated 25-9-2017 stating that there had been a delay of 4 days in paying the interest of ₹ 64,98,367/- and as they failed to comply with the order of the Settlement Commission, they had to pay the amounts specified in para 10.2 of the Order. They further submitted that the order was received by the Finance department only on 6-3-2017 and that they ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the security personnel informed that it was received on 5-3-2017. Accordingly, the applicant complied with the order of the Settlement Commission and paid the tax liability and penalty on 14-3-2017. The applicant was also directed to re-work out interest liability to the satisfaction of the jurisdictional Commissioner and after adjusting the interest of ₹ 48,23,420/- paid earlier, the balance amount should be paid within 30 days from the receipt of the order. 2.3 The consultant further submitted that on 25th September, 2017, the Applicant received a communication from the Supdt. of Central Excise, Bangalore, stating that there was a delay of 4 days in paying the interest of ₹ 64,98,367/- and it was stated that the Speed post Acknowledgement shows that the order was received by the company on 1-3-2017. Accordingly, they were liable to pay the entire amount. It is their submission that the Finance Department of the company dealing with such matters received the copy of the order on 6-3-2017 and 30 days time should be taken from the date of actual receipt by the Finance Department, looking after the matter. It was also submitted by the consultant that during the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorized to receive communications from Government office and the Finance department noted the date of receipt as 6-3-2017. Relying on the provisions of Section 37C of the Central Excise Act, 1944, contended that service of order or notice should be on the person to whom it was intended or his authorized agent. The Order should be considered as served on the authorized person only on 6-3-2017. They relied on the cases of M/s. Saral Wire Craft Pvt. Ltd. v. CCCE ST [2015-TIOL-154-SC-CX] and M/s. Johar Forest Works (B) v. CIT [1977 (107) ITR 409 (J K)]. They discharged the balance amount of Service Tax and penalty on 14-3-2017 and as per the final order, they were required to obtain confirmation from the Revenue on the interest computation. They sent e-mail to the Revenue for obtaining confirmation and the interest liability was orally confirmed by the office of the DGCEI only on 3-4-2017 and on the next day, i.e. on 4-4-2017, they paid the interest amount. If the receipt of order is considered as 1-3-2017, there was a delay of 3 days in discharge of interest. Relying on the case of Kailash Chand Manoj Kumar Sarraf Pvt. Ltd. v. Assistant Commissioner of Income Tax [2007-TIOL-95 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Applicant. Before the Settlement Commission, both the parties being rival, it was equitable to the jurisdictional officer to revert in definitive timeline. Hence, delay in confirmation of interest by Revenue could not result in withdrawal of immunity. Relying on the cases of Lakshmi Dal Mills [2018-TIOL-185-HC-MAD-CUS], Ashoka Rubber Products [2007 (219) E.L.T. 759 (Sett. Comm.)], M/s. Gurukrupa Metal Recycling [2007 (220) E.L.T. 641 (Sett. Comm.)] and Manish Kalvadiya [2008 (226) E.L.T. 294 (Sett. Comm.)], they claimed nobody should suffer for the wrong done by a quasi-judicial body (Actus curiae neminem gravabit) and no one could take advantage of his own wrong (Nullus commodum capere potest de injuria sua propria and Nul prendra advantage de son tort demesne). Hence the Commission should consider that the Applicant had complied to the direction provided in the order and rightly be entitled to all the immunities granted therein. Even assuming without conceding that there was delay, the Commission have power to condone in the interest of justice keeping in mind the facts and circumstances of the case, moreso when the purported delay was not deliberate and solely attrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 6-3-2017. The Applicant also submitted during the personal hearing that the final order directed the Applicant to work out the interest liability to the satisfaction of the jurisdictional Commissioner and as the final interest liability worked out by them was confirmed only on 3-4-2017, they could make the payment only on 4-4-2017. Since the balance of Service Tax and penalty were paid on 14-3-2017 and the interest on 4-4-2017, the entire dues stood paid within the 30 days time limit stipulated by the Settlement Commission. 4.3 At the first instance, the Applicant claimed that the subject order was handed over by their security personnel to their Finance department only on 6-3-2017 and hence the date of receipt should be treated as 6-3-2017, is not correct. If the order is served on the Applicant company on 1-3-2017, as per the Postal Acknowledgement, the conditions of Section 37C of the Central Excise Act, 1944, shall be deemed to have been complied with and this argument of the Applicant fails. The date of receipt of the order by the Applicant shall be treated only as 1-3-2017 and not 6-3-2017. 4.4 However, in this regard, the Bench feels that the Affidavit dated 16-2-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and had also sworn by an Affidavit that the computation of interest liability was finally confirmed by the Investigating Agency only on 3-4-2017, which was not refuted by the department, observes that the submissions made by the Applicant has force and period between 14-3-2017 to 3-4-2017 needed to be excluded for the purpose of computing the time limit of 30 days given for payment of the dues. As the interest liability could not be specified in the subject Final Order, inasmuch as a portion of the additional Service Tax liability settled, remained unpaid on the date of order, the Applicant was directed to work out the interest liability to the satisfaction of the jurisdictional Commissioner and pay the same within 30 days of receipt of the order. The Applicant could not be expected to discharge the interest liability, unless the same is confirmed by the department, as per the orders of the Bench. In the above backdrop, the Bench feels that the Applicant has a strong case in the matter and accordingly holds, in the facts and circumstances of the case, that the 30 days period insofar as the payment of interest is concerned, is to be taken from the date of communication confirming th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
