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TMI Blog2021 (9) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... , there is an admission of the appellant that the impugned demand was not paid at the relevant time, but the admission is rather more in the form of acknowledgement that the non-payment was due to unavoidable circumstances as that of grave medical illness of the spouse of the appellant who finally succumbed to that illness on 24th June, 2017. This fact has been brought to the notice of the Department since the time the Show Cause Notice has been issued but the same has not at all been considered by the Adjudicating Authority below. The authority has miserably failed to distinguish the nonpayment of tax for the reasons beyond the control of the assessee from the situation where the assessee has failed to deposit tax with the sole intention to not to deposit the same. Section 78 / 78A can be attracted only in the later situation - The financial statements in the form of balance-sheets, tax returns etc. as placed on record bear his signature as the person authorized for the Company. None of those documents bear the signature of the appellant. Department has not produced any such documents for a subsequent period where the appellant would have been a signatory to such returns. Mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt proposing the recovery of the aforementioned amount of Service Tax. The penalty was also proposed to be imposed on the Company as well as on the present appellant. The said proposal has been confirmed vide Order-under-challenge. Being aggrieved, the appellant is before this Tribunal. 2. I have heard Shri R. Santhanam, learned Counsel for the Appellant and Shri Ravi Kapoor, learned Authorized Representative for the Revenue. 3. It is submitted on behalf of the appellant that the Company M/s. Dynamic Team Security Pvt. Ltd. (DTSPL) had already availed the benefit of Sabka Viswas(Legacy Dispute Resolution) Scheme Rules, 2019. The Discharge Certificate /SVLDRS Form No.4 has already been issued to the Company. The present appellant, however, was under bonafide belief that the said Certificate shall suffice for her as well. It is further mentioned that otherwise also despite the appellant was appointed as Director of the Company since December, 2016 but she was not In-charge of day-to-day affairs. It was one Mr. Amar Singh Gautam who initially was General Manager and later was promoted as the Finance Director. He was responsible for day-to-day finance affairs of the Company. Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Scheme only. Application on behalf of Company cannot absolve the Director / the appellant of the liability as has already been confirmed against her. Ld. D.R. has also impressed upon that there is otherwise sufficient admission on the part of the present appellant that the impugned amount of Service Tax was not deposited. Her statement RUD-21 as was recorded on 29th March, 2019 where she has acknowledged that the impugned tax amount has not been deposited. Learned D.R. also brought to the notice that even the statement of Amar Singh Gautam was recorded on 20th September, 2018 (RUD-7) who has admitted that the Company had collected Service Tax amounting to ₹ 7,31,00,966/- in the Financial Year 2013-14 to 2016-17. But the requisite Service Tax thereof was not deposited. He also admitted that he looks after the entire financial matters of the company but under the guidance of the Director of the Company who earlier was Mr. Ajaypal Singh Bansal and post his death it was the present appellant. Ld. D.R. has emphasized that these admissions have rightly been considered as sufficient by the adjudicating authority below to impose the penalty upon the present appellant. The order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice tax so determined : Provided also that the benefit of reduced penalty under the second proviso shall be available only if the amount of such reduced penalty is also paid within such period : Explanation. - For the purposes of this sub-section, specified records means records including computerized data as are required to be maintained by an assessee in accordance with any law for the time being in force or where there is no such requirement, the invoices recorded by the assessee in the books of accounts shall be considered as the specified records. (2) Where the Commissioner (Appeals), the Appellate Tribunal or the court, as the case may be, modifies the amount of service tax determined under sub-section (2) of section 73, then, the amount of penalty payable under sub-section (1) and the interest payable thereon under section 75 shall stand modified accordingly, and after taking into account the amount of service tax so modified, the person who is liable to pay such amount of service tax, shall also be liable to pay the amount of penalty and interest so modified. (3) Where the amount of service tax or penalty is increased by the Commissioner (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case, the period of demand is from April 2013 to June 2017. The appellant was appointed as Director on 1st December, 2016. This apparent fact is sufficient to falsify any involvement as that of intent/knowledge of the appellant being the Director about tax evasion by the appellant for the period from April, 2013 to November, 2016. For the remaining period, no doubt, there is an admission of the appellant that the impugned demand was not paid at the relevant time, but the admission is rather more in the form of acknowledgement that the non-payment was due to unavoidable circumstances as that of grave medical illness of the spouse of the appellant who finally succumbed to that illness on 24th June, 2017. This fact has been brought to the notice of the Department since the time the Show Cause Notice has been issued but the same has not at all been considered by the Adjudicating Authority below. 9. The authority has miserably failed to distinguish the nonpayment of tax for the reasons beyond the control of the assessee from the situation where the assessee has failed to deposit tax with the sole intention to not to deposit the same. Section 78 / 78A can be attracted onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that these individuals have acted in contumacious manner so as to impose penalty. In another case titled as Continental Foundation Joint Venture vs. CCE, Chandigarh - Hon ble Apex Court held that omission by a party to do what he might have done would not render it suppression. As far as fraud and collusion are concerned, it is evident that the intent to evade duty is build into these words. So far as the misstatement or suppression is concerned, they are clearly qualified by the word wilful preceding the words mis-statement or suppression of facts which again means intent to evade duty. Apparently, there is no deliberate intent on part of appellant to not to pay the duty. 11. Hon ble High Court of Delhi also in the case of Anil Kumar Mahisaria vs. Commissioner of Customs reported in 2008 (228) ELT 166, it was held that in case of any noticed evasion /non-deposition of tax by a Company only one set of penalty can be imposed either on the Company (the Proprietorship fir therein) or on the person In-charge of day-to-day affairs. The Company herein admittedly has been issued a Discharge Certificate under SVLDR Scheme. 12. In totality of the circumstances, it is opined that C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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