Custom, Excise & Service Tax Tribunal
M/S Multi Channel Setellite System vs C.C.E. Jaipur-I on 5 October, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Service Tax Appeal No. ST/474/2011-[SM]
[Arising out of Order-In-Appeal No. 448(DKV) ST/JPR-I/2010 dated 22.12.2010 passed by CCE Jaipur]
For approval and signature:
Honble Mr. S.K. Mohanty, Member (Judicial)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
M/s Multi Channel Setellite System Appellant(s)
Vs.
C.C.E. Jaipur-I Respondent(s)
Appearance:
Mr. Abhishek Jaju (Advocate) for the Appellant Mr. R. K. Mishra (DR) for the Respondent CORAM:
Honble Mr. S.K. Mohanty, Member (Judicial) Date of Hearing/ Decision. 05.10.2016 Final Order No. 54884 /2016 Per S. K. Mohanty:
This appeal is directed against the impugned order dated 15.12.2010 passed by the Commissioner(Appeals) Central Excise, Jaipur. The appellant is not contesting the service tax and the interest amount confirmed in the adjudication order. The only grievance of the appellant is that the benefit of Section 80 has not been extended in the impugned order for non-imposition of penalty under Section 76, 77, 78 of the Finance Act, 1994.
2. Sh. Abhishek Jaju, the Ld. Advocate appearing for the appellant submits that non-payment of service tax was due to the bonafide belief that the multi system operator (MSO) was liable to pay the tax, and as such, the appellant had not collected any tax from its customers. He submits that since the amount of service tax has not been collected from the service receiver, there is no element of fraud, collusions, suppression etc. with intent to evade payment of service tax.
3. On the other hand, Sh. R. K. Mishra, the Ld. AR appearing for the Revenue reiterates the findings recorded in the impugned order and further submits that the service tax on cable operator service was brought into the taxing net w.e.f. 16.08.2002 and even after 6 years from the date of levy, the appellant had failed to deposit the tax. Thus, non-payment of tax shows the malafidies of the appellant and as such, the confirmation of the penalty amount in the impugned order is proper and justified.
4. Heard both the sides and perused the records.
5. I find that no specific findings have been recorded by the authorities below, establishing the involvement of the appellant in any fraudulent activities, concerning fraud, suppression or contravention of the statutory provisions with intent to evade payment of tax. Further, I find that the service tax in question was not collected by the appellant from the service receivers and retained back with them. This shows that the appellant had no intention to defraud the Government Revenue. Therefore, I am of the view that the penalty cannot be imposed under Section 78 of the Act. However, it is an admitted fact on record that the appellant had failed to deposit the service tax and also contravened the provisions of Rule in not obtaining the service tax registration certificate within the stipulated time. Therefore, penalty under Section 76 and 77 imposed in the adjudication order and upheld in the impugned order, in my opinion, is in conformity with statutory provisions. Therefore, the appeal is partly allowed to the extent of setting aside the penalty imposed under Section 78 of the Finance Act, 1944. The appeal is disposed of in above terms.
(Dictated and pronounced in open court) (S. K. Mohanty) Member(Judicial) Neha 3 | Page ST/474/2011-ST[SM]