Page 68 - GSTL_26th March 2020_Vol 34_Part 4

578 GST LAW TIMES [ Vol. 34
and 31 March, 2008. On a verification of the records, including the Ledger Ac-
counts and ST-3 returns, it was noticed that the appellant-assessee had received
an amount of Rs. 1.50 crores as “appearance money” on which the liability to
service tax had not been discharged. It appears that the assessee claimed that this
income had been earned towards inauguration by him of certain shops, as gift
income. On this basis, the assessee claimed that it was not exigible to service tax.
4. A notice to show cause was issued to the appellant on 8 September,
2010 by the Commissioner of Customs, Central Excise and Service Tax demand-
ing service tax outstandings of Rs. 18,54,000. The appellant filed a reply dated
4 October, 2010. On 18 October, 2012, the Commissioner of Customs, Central Ex-
cise and Service Tax confirmed the demand and a penalty of an equivalent
amount, together with interest.
5. Aggrieved by the order of the Commissioner, the appellant filed an
appeal on 7 December, 2012 before the Commissioner (Appeals), together with
an application for waiver of pre-deposit. On 28 January, 2013, the Commissioner
(Appeals) declined to accede to the prayer for a waiver of pre-deposit. Upon the
failure of the appellant to effect the deposit, the Commissioner (Appeals) dis-
missed the appeal on 25 February, 2013. The appellant then moved the CESTAT,
Bangalore, which by an order dated 28 September, 2013 remanded the matter
back to the file of the Commissioner (Appeals) for fresh adjudication. The Com-
missioner (Appeals), by an order dated 28 November, 2013, directed the appel-
lant to pay a sum of Rs. 16,50,053 as a condition for stay.
6. According to the appellant, an appeal was filed before the CESTAT
on 17 December, 2013 against the order of the Commissioner (Appeals) dated
28 November, 2013. This is disputed by the Revenue. Be that as it may, the
Commissioner (Appeals) dismissed the appeal on 23 December, 2013. The appel-
lant then filed the appeal before the CESTAT, at its regional Bench, at Bangalore
against the dismissal of the appeal. The appeal was filed on 6 July, 2016 with a
delay of 812 days. The CESTAT dismissed the appeal on 6 June, 2018. The High
Court has dismissed the further appeal by its impugned order dated 14 March,
2019 [2020 (34) G.S.T.L. 422 (Telangana)].
7. During the course of the pendency of the proceedings, the counter
affidavit filed on behalf of the Union of India indicates that the entire amount
due by way of service tax, penalty and interest has been recovered. In paragraph
12 of the counter affidavit, it has been stated that following the dismissal of the
appeal by the CESTAT, notices were issued to the bankers directing them to de-
duct an amount of Rs. 73,44,634 [Rs. 18.54 lakhs towards service tax, Rs. 18.54
lakhs towards penalty and Rs. 36,36,634 towards interest). It appears that a de-
mand draft of Rs. 41,96,648 was remitted by Axis Bank while another demand
draft of Rs. 31,47,994 was remitted by ICICI Bank. Mr. Vikramjit Banerjee,
Learned Additional Solicitor General states that the entire amount has since been
recovered.
8. The facts, as they emerged before the Court, indicate that the appeal
filed by the assessee has been dismissed only on the ground of delay and failure
of pre-deposit. The entire amount of tax, penalty and interest has been recovered.
The submission of the assessee is that though it had preferred an appeal against
the order dated 28 November, 2013, on the application for waiver of pre-deposit
passed by the Commissioner (Appeals), the appeal was dismissed on merits on
23 December, 2013. The assessee submits that he was under the bona fide belief
that the appeal filed against the order on the stay petition would be listed and,
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