Customs, Excise and Gold Tribunal - Tamil Nadu
Spic And Span Security And Allied ... vs C.C.E. on 27 April, 2005
ORDER
S.S. Kang, Vice President
1. Heard both sides.
2. Ld. SDR pointed out that Revenue also filed two Appeal Nos. ST/105-106/05/NB(S) against the same impugned order which are listed on 28-4-05. As the appeals filed by the assessee is listed today, therefore, the appeals filed by the Revenue are also called and arguing along with these appeals.
3. The appellants are challenging the imposition of penalties imposed from them under Section 76 of the Finance Act, 1994 and Revenue filed the appeals for enhancing the amount of penalties.
4. The Commissioner (Appeals) in the impugned order imposed a penalty of Rs. 80,000/- on the appellant - M/s. Spic & Span Security Services (Regd.) and penalty of Rs. 4 lakhs on M/s. Spic & Span Security and Allied Services (India) Pvt. Ltd. The appellants are not disputing that they had paid due Service Tax in delay. The contention of the appellant is that they were under the security services to various customers and they were under the bona fide belief that the Service Tax is to be paid on receipt of the amount charges from their customers and some of their customers disputed the Service Tax be collected by the appellant, therefore, there was some delay in depositing the Service Tax.
5. The contention of the appellant is also that in the impugned order, the Commissioner (Appeals) held that the appellant acted in a bona fide belief that the Service Tax was paid only after the same was collected from the customer. The appellants also relied upon the provisions of Section 80 of the Finance Act which provides that no penalty is imposable on the assessee in case of any failure on the part of the assessee if proves that there was reasonable cause for the said failure.
6. The contention of the Revenue is that as per the provisions of Section 76 of the Act where maximum penalty is provided.
7. In this case the appellants are not contesting the amount of Service Tax and they are admitting that there was delay in depositing the Service Tax. I find that the Hon'ble Delhi High Court in the case of Combatta Aviation Ltd. v. Union of India & Others held that delay in depositing the tax and filing the mens rea is no place in such matters. In view of the above decision of the Delhi High Court and in view of the fact that Service Tax was depositing late. I find no infirmity in the impugned order whereby the penalty is imposed. However, taking into the facts and circumstances of the case as the finding of the Commissioner is that the appellant acted in a bona fide, though erroneous, belief that the Service Tax has been paid the same was collected from the customers and in view of the provisions of Section 80 of the Finance Act, the impugned order is sufficient to meet the ends of justice. Keeping in view the facts and circumstances of the case, I find no merit in the appeals filed by the Revenue whereby the Revenue prayed for enhancement of the penalties. In these circumstances, the appeals are dismissed.
(Dictated & pronounced in open Court on 27-4-2005)