Custom, Excise & Service Tax Tribunal
Sanik Mining & Allied Services Ltd vs C.C.E. & S.T. Bhopal on 28 July, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
SINGLE MEMBER
Date of Hearing/Order: 28/07/2015
Appeal No. ST/52521/2014-ST(SM)
[Arising out of Order-in-Original No.06/COMMR/ST/ADJ/STN/2014 dated 31.01.2014 passed by Commissioner of Customs Central Excise & Service Tax, Bhopal, (M.P.)]
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2.
Whether it would 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 Department Authorities?
Sanik Mining & Allied Services Ltd. Appellant
Vs.
C.C.E. & S.T. Bhopal Respondent
Appearance:
Present for the Appellant: Shri S.K. Pahwa, Advocate Present for the Respondent: Shri G.R. Singh, DR Coram: Honble Ms. Sulekha Beevi C.S., Member (Judicial) Final Order No.52379/2015 Per: Sulekha Beevi C.S. The appellant is aggrieved by the penalty imposed under Section 76 of the Finance Act, 1994.
2. The appellants are engaged in providing the services of Site Formation and Clearance, Excavation, Earthmoving & Demolition services and registered for payment of service tax. During the period September, 2008 to February 2009 the appellants failed to deposit the service tax with in the due time. The appellants deposited the amount alongwith interest with delay. Penalty was imposed under Section 76 of the Finance Act, 1994 considering the delay and failure to pay the tax within the stipulated time.
3. The ld. Counsel submitted that delay occurred in payment of tax only due to financial difficulty and that it was paid much before issuance of Show Cause Notice. He also relied upon the decision rendered in CCE & ST, LTU, Bangalore Vs. Adecco Flexione Workforce Solutions Ltd. 2012 (26) S.T.R. 3 (Kar.) wherein it has been held that penalty cannot be imposed if service tax alongwith interest is paid with delay before the issuance of Show Cause Notice . The learned DR reiterated the findings in the impugned order and urged that it is mandatory to impose penalty. The issue being covered by the above judgment, I do not think it necessary to further delve into the matter. Applying the ratio in the above judgment I hold that the penalty imposed is unsustainable.
4. In view thereof, the impugned order is set aside. Appeal allowed accordingly.
(Pronounced and dictated in the open Court) (Sulekha Beevi C.S.) Member (Judicial) K. Gupta 3