Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs M/S D.N.H. Spinners on 24 September, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT:
II
Appeal No.ST/279/2009
Arising out of: OIA No.KRS/135/VAPI/2009, dt.31.3.09.
Passed by: Commissioner of Central Excise & Customs (Appeals), Vapi
For approval and signature:
Honble Mr. B.S.V. Murthy, Member (Technical)
1. Whether Press Reporters may be allowed to see the No
Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen
the order?
4. Whether order is to be circulated to the Departmental Yes
authorities?
Appellant:
M/s D.N.H. Spinners
Respondent:
CCE Vapi Represented by:
None for the Assessee; Shri S.K. Mall, SDR for the Revenue. CORAM:
MR. B.S.V. MURTHY, MEMBER (TECHNICAL) Date of Hearing/Decision:24.09.10 ORDER No. /WZB/AHD/2010 Per: Mr.B.S.V. Murthy:
On the ground that the appellant did not pay the service tax on freight paid by them of Goods Transport Service received by them during the period January 2005 to September 2006, proceedings were initiated and service tax of Rs.2,36,519/- was demanded with interest and equivalent penalty was imposed. The appeal was listed for hearing on 21.10.09, 29.11.09, 14.05.10, 25.06.10, 06.08.10, 03.09.10. On all these occasions, the adjournments were allowed at the request of learned advocate, appearing for the appellant. Today, when the matter was called, neither there is any request for adjournment nor is there any representation on behalf of the appellant.
2. Heard the learned SDR on behalf of the Revenue. He submits that the appellants have defended the case before lower authority on the ground that the service tax was demanded on the basis of ledger entries and the ledger entries consisted of loading and unloading as well as transportation charges and therefore the demand was not correct. He submits that this was got verified by Range Superintendent by lower authority and Superintendent has given a clear report that the total amount spent towards loading/unloading and transportation charges was more than Rs.2.31 crores and the very fact that only service tax of Rs.2,36,519/- has been demanded, shows that the loading and unloading expenses have been excluded while arriving at service tax payable. He submits that the appellants have not produced any evidence before lower authorities as to what are the amounts which are incurred towards loading and unloading and to what extent the demand would come down.
3. I have considered the submissions. I find that the lower authorities have correctly considered the submissions made by the appellant and submissions made by them that the ledger entries consisted of loading/unloading charges as well as transport charges, was got verified. Further, the appellants have also submitted a copy of the ledger accounts in their reply and from the copy of the ledger account, it is seen that the amounts contained both loading and unloading as well as transportation charges. Appellants have not made any effort to segregate both and show what was the actual amount incurred towards transportation and what was the actual amount spent towards loading and unloading charges. Other than making a bald statement that neither the appellant availed service of the transporter nor the appellant paid amount to the transporter, no defence has been put forth. Under these circumstances, I find that the lower authorities have taken a correct view and therefore the service tax and interest thereon have been correctly demanded.
4. Penalty under Section 78 of Finance Act,1994 (the Act) equal to service tax has been imposed and provisions of Section 78 of the Act are similar to the provisions of Section 11AC of Central Excise Act,1944 as regards penalty. In this case, both the lower authorities have not given option to the appellant to pay the service tax demanded along with interest and 25% of service tax towards penalty within 30 days and therefore, such option is required to be extended by this Tribunal by following the decision in the case of M/s Swati Chemicals & Others Vs. CCE as reported in 2009 (94) RLT 684 (CESTAT). Accordingly, if the appellants discharge service tax liability in full with interest and also penalty to the extent of 25% within 30 days from the date of receipt of this order, the liability towards penalty shall be limited to 25% of the service tax demanded. It is made clear that failure to deposit any of these three elements within 30 days would result in penalty equal to service tax payable.
(Dictated & Pronounced in Court) (B.S.V. Murthy) Member (Technical) cbb ??
??
??
??
4