Dept. can't file FIR against assessee due to default in payment of service tax

Dept. can't file FIR against assessee due to default in payment of service tax

 [2015] 62 taxmann.com 281 (Punjab & Haryana)

HIGH COURT OF PUNJAB AND HARYANA

Ajay Kumar Sandhu

v.

State of Haryana*

Section 89, read with section 90 of the Finance Act, 1994 and section 406 of the Indian Penal Code, 1860 and section 482 of the Code of Criminal Procedure, 1973 - Offences and penalties - Service Tax - Alleging non-payment of service tax of Rs. 1,05,705, department filed FIR against assessee under section 406 - Assessee sought quashing of FIR on ground that general provisions of IPC cannot be applied for service tax purposes - HELD : Assessee made payment of service tax on demand being put up by service tax authorities - Finance Act, 1994 is a special and complete Code in itself and, therefore, same would prevail over general provisions of IPC - When service tax law itself provides for adjudication, interest and penalty for default in payment of service tax, department's action in registering FIR was abuse of process of Court - Since assessee had undertaken to pay demand, if any, still arising under service tax law, continuation of criminal proceedings would amount to further abuse of process of court - Therefore, FIR was quashed accordingly [Paras 6 to 12] [In favour of assessee]

2. Request for cross-examination of witness can't be denied just because it would delay adjudication

 [2015] 62 taxmann.com 294 (Delhi)

HIGH COURT OF DELHI

Flevel International

v.

Commissioner of Central Excise*

Section 9D, read with section 11A of the Central Excise Act, 1944 - Relevancy of statements under certain circumstances - Department raised demand relying upon statements of dealers/buyers - Assessee's request for cross-examination of witnesses was rejected on ground that it would delay adjudication and in any case, it was not required by law - HELD : Denial of an opportunity of cross-examination of relied-upon witnesses would vitiate order of adjudication - In this case, department could not bring witnesses for cross-examination and summons issued to them were returned with 'left' remark - In absence of any extraordinary circumstances, denial of cross-examination citing that 'there is no requirement or it would delay adjudication' was unjustified - Department's request for remanding matter back was rejected, as it was almost impractical to cross-examine witnesses after time-span of 23 years - Demand was set aside [Paras 38 to 48 & 58] [In favour of assessee]

Section 11A of the Central Excise Act, 1944 - Recovery - Of duty or tax not levied/paid or short-levied/paid or erroneously refunded - Clandestine Removal of Excisable Goods - Department raised demand alleging clandestine removal of 606 Air-conditioners relying upon certain ledger discrepancies - HELD : Assessee's explanation towards sales figures in ledger entries were not considered and, therefore, impugned demand is vitiated - In any case, mere ledger entries without any further proof of production and purchases of raw material cannot substantiate clandestine removal - No serious investigation was carried out as regards details furnished by assessee or those gathered in course of investigation - Hence, demand was set aside - Department's request for remanding matter back was rejected [Paras 49 to 58] [In favour of assessee]

3. MCA

 MCA has notified New Form AOC - 4 CFS (Form for filing consolidated financial statements and other documents with the Registrar), which is available for filing w.e.f 1st Nov 2015. Further, the Versions of forms AOC-4 (XBRL) and AOC - 4​ Attachment are modified w.e.f 1st Nov 2015. MCA has also made necessary changes w.r.t SRN of form ADT-1 filed for intimation of appointment of the auditor in case of Government Companies and First Auditors under section 139(5)/ (6)/ (7) of the Companies Act, 2013. Now all such companies can enter the SRN ‘Z99999999’ for any such appointment while filing Form AOC - 4. Only new version of the eForm will be acceptable. Stakeholders are requested to plan accordingly and ensure that you have downloaded the latest version for filing and uploading the latest version only. Form-wise date of last version change is available at on the website of MCA.