ST - VCES, 2013 - Tax dues were declared incorrectly due to arithmetical error and appellant suomotu made good balance payment along with interest by 31.12.2014 - It cannot be said that appellant had made a substantially false declaration: CESTAT
By TIOL News Service
MUMBAI, APR 19, 2016: THE appellant,after filing VCES-1 declaration on 31.12.2013, indicating the total dues as Rs.2,78,118/-paid 50% of the said amount i.e. Rs.1,39,100/- on the same day. The balance 50% was paid by them in two installments of Rs.35,288/- and Rs.1,03,730/- on 13.5.2014 & 30.06.2014 respectively. On finalization of balance sheet, the Chartered Accountant pointed out that the gross receipt was shown short and accordingly the total service tax dues was declared less by Rs.35,288/-. Considering the short amount declared in the VCES declaration, the balance amount along with interest which comes to Rs.40,479/- was suomotu paid on 20.12.2014.
The department took a view that in view of the above short-payment and incorrect declaration while filing the VCES-1, the same is to be considered as substantially false and accordingly under a SCN it was proposed to demand Rs.5,86,789/- without considering the abatement as provided under Notification No. 1/2006-ST dt. 1/3/2006.
The CCE, Aurangabad upheld the allegations leveled in the SCN and after adjusting the amount already paid, confirmed the balance amount of Rs.3,08,672/- and also demanded interest u/s 75 and equal penalty u/s 78 of FA, 1994.
The appellant is before the CESTAT and after explaining the facts of the case submitted that it was an arithmetical mistake on their part and the revised liability was computed and suomotu paid by them before 31.12.2014; no finding is given by the CCE to conclude that the declaration was substantially false; as the gross amount is inclusive of food/catering, therefore, they are legally entitled for the abatement of 40% as provided under Notification No. 1/2006-ST.
The AR while reiterating the findings of the CCE submitted that the foremost condition under the VCES, 2013 was to make a true and correct declaration and since the liability declared was found to be wrong, the same would amount to false declaration and for this reason itself the declaration is liable to be rejected.
The Bench, after considering the submissions, observed -
+ The Commissioner has not given proper finding as regard the abatement available to the appellant to the extent of 40% from the gross value as provided under Notification No. 1/2006-ST. On perusal of the books of accounts of the appellant, I find that the gross receipt shown in the balance sheet/profit and loss account is inclusive of catering / food. As per the Notification No. 1/2006-ST the abatement of 40% is allowed subject to condition that the gross amount charge is inclusive of food items. In view of the fact that the cost of the food item is inclusive in the gross amount charged by the appellant, they are entitled for the abatement.
+ As regard, the charge of false declaration, I find that the mistake has occurred due to arithmetic error in quantifying the due and the same was pointed by the appellant themselves and made good by making the payment of correct amount, and for the delay in making the payment, they also paid the interest. From this fact, I do not find any intention of the appellant to make a false declaration. This is only due to arithmetical error that there is mistake in declaring the actual dues. I also find that the appellant have paid the entire amount of correct dues along with interest before the last date i.e. before 31.12.2014.
Holding that there is no reason in not accepting the VCES declaration, the impugned order was set aside and the appeal was allowed.
(See 2016-TIOL-921-CESTAT-MUM)
