D.B. Civil Writ Petition No. 1149 of 2014. Case: Chhote Lal Virendra Kumar Jain Vs Union of India. Rajasthan High Court

Case NumberD.B. Civil Writ Petition No. 1149 of 2014
CounselFor Appellant: P.K. Kasliwal, Adv. and For Respondents: Sarvesh Jain, Adv.
JudgesAjay Rastogi and Jainendra Kumar Ranka, JJ.
IssueCentral Excise Act, 1944 - Sections 35(2A), 35B, 35C(2A); Finance Act, 1994 - Sections 67, 68, 69, 70, 73(1), 75, 76, 78, 86, 87(b)
Citation2014 (45) GST 443 (Raj)
Judgement DateApril 09, 2014
CourtRajasthan High Court

Order:

Ajay Rastogi, J.

  1. Heard counsel for the parties. The petitioner is a proprietorship firm & providing maintenance service under contract/agreement to the service receiver i.e. respondent, Jaipur Nagar Nigam.

  2. The brief facts culled out are that a show cause notice dt. 18.10.2010 (Ann. 1) came to be served upon petitioner alleging that he has failed to pay service tax payable during the period 16.6.2005 to 31.3.2010 and thus contravened the provisions of Sections 67, 68, 69, 70 of Chapter V of the Finance Act, 1994 read with Rules 4, 5, 6, 7 of Service Tax Rules, 1994.

  3. In response to the notice dt. 18.10.2010, the petitioner submitted his reply and taking note of the explanation furnished by the petitioner, the (Commissioner, Central Excise & Customs), Jaipur-I, (adjudicating authority) vide its order dt. 21.2.2012 held ad infra-

    (i) I confirm under section 73(1) of the Finance Act, 1994 the demand of service tax amounting to Rs. 83,51,306/- (Rs. Eighty Three Lakh Fifty One Thousand Three Hundred Six only) (including Education and S&H Education Cess) and order it to be recovered from M/s. Chhote Lal Virendra Kumar Jain, SB-116-117, Mangal Marg, Lalkothi, Jaipur along with interest in terms of Section 75 of the said Act.

    (ii) I also impose a penalty of Rs. 83,51,306/- (Rs. Eighty Three Lakh Fifty One Thousand Three Hundred Six Only) on M/s. Chhote Lal Virendra Kumar Jain, SB-116-117, Mangal Marg, Lalkothi, Jaipur under Section 78 of the Finance Act, 1994. However benefit of reduced penalty of 25% as per proviso to Section 78 ibid, is available to the noticees subject to the condition that Service Tax demand of Rs. 83,51,306/- and the interest payable thereon (on Rs. 83,51,306/-) under Section 75, is paid within thirty days from the date of communication of this order and further subject to the condition that the benefit of reduced penalty (25% of Rs. 83,51,306/-) shall be available if the amount of penalty so determined has also been paid within the period of thirty days from the date of communication of this order.

    (iii) I impose a penalty of Rs. 200/- per day w.e.f. 01.05.2006 per day for the period during which such failure continued or at the rate of 296 of the amount of Service Tax due, per month, whichever is higher, till the date of actual payment of outstanding Service Tax, subject to maximum of service tax amount outstanding and payable/late paid up to 9.5.2008 under Section 76 of the Finance Act, 1994.

  4. Against the order of adjudicating authority, appeal came to be preferred before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) u/s. 86 of the Finance Act, 1994 along with an application for waiver of pre deposit seeking interim protection pending appeal. The ld. Tribunal after hearing the parties, vide its order dt. 20.9.2012 found prima facie case in favour of the petitioner and taking note of the interest of the revenue and the financial hardship of the appellant into consideration, passed the order which reads infra-

    We looked into a sample work order of the appellant Shri Suresh Jaiswal. That shows that there were various activities carried out by that appellant to make the park useful. Prima facie, keeping aforesaid averments of both sides in view and also with the changed conception of law, we are of the belief that pre-deposit should be called for in all the three cases. As an interim measure, we direct all the three appellants to deposit 15% of service tax demand in each case within eight weeks from today and make compliance on 20.12.2012. Subject to deposit, there shall be waiver of pre-deposit of balance dues during pendency of the appeal or for a period of six months...

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