Custom, Excise & Service Tax Tribunal
C.C.E. & S.T., Bhopal vs H L Passey Engineering Pvt. Ltd on 11 February, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI 110 066
Date of Hearing 11.02.2014
For Approval &Signature :
Honble Mrs. Archana Wadhwa, Member (Judicial)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
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 Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
Appeal No.ST/59591/2013-ST[SM]
[Arising out of Order-in-Appeal No.12/BPL/2013, dated 10.01.2013 passed by C.C.E.(Appeals), Bhopal]
C.C.E. & S.T., Bhopal Appellant
Vs.
H L Passey Engineering Pvt. Ltd. Respondent
Appearance Shri, M.S. Negi, DR - for the appellant Shri Jatin Mahajan, Authorised Rep. - for the respondent CORAM: Honble Mrs. Archana Wadhwa, Member (Judicial) Final Order No.50465, dated 11.02.2014 Per Honble Mrs. Archana Wadhwa :
Being aggrieved with the order passed by Commissioner (Appeals), Revenue has filed the present appeal.
2. After hearing both the sides duly represented by Shri MS Negi, Ld. Departmental Representative and Shri Jatin Mahajan, Ld. Advocate for the respondents, I find that the respondents are registered with the Service Tax Department for providing various services. It is seen that they defaulted in payment of service tax by due dates on various occasions during the period 2007-08, 2008-09 and 2009-10. The service tax was subsequently deposited by the respondents along with interest.
3. Proceedings were initiated against the respondents for imposition of penalty on account of delayed deposits of service tax. However, on appeal, Commissioner (Appeals) set aside the penalties by observing as under:-
Further in the case of Vinayaka Travels Vs. CCE Bangalore 2009 (13 STR 31 it was held that penalty cannot be imposed on an appellant when he had paid the service tax along with interest before issuance of Show Cause Notice is a sufficient reason to belief that the assessee did not have intention to evade the duty.
I also observe that the appellants had made the differential payments of service tax as and when pointed out or detected by themselves along with interest before issue of a Show Cause Notice and no case of fraud, suppression or contravention of any provisions of Act or rules with intent to evade payment of tax had been made out against the appellant. Hence the benefit of Section 73(3) would also be available to the appellant for non-levy of penalty as has been clarified in CBE&C Instruction 208/27/2003 Cx-6 dated 18.12.2003.
The Appellant have also prayed for waiver of penalty under Section 80 of the Act. I find that the Appellant have given sufficient reasonable cause for their failure in timely payment of differential amount of Service Tax and it is a fit case of waiver of penalty in terms of Section of 80 of the Finance Act, 1994. Accordingly, I set aside the penalty imposed upon the Appellant under Section 76 of the Act vide the impugned order.
4. I find that the Hon'ble High Court of Karnataka in the case of CCE&ST (LTU), Bangalore Vs. Adecco Flexione Workforce Solutions Ltd. [2012 (26) S.T.R. 3 (Kar.)] has held that where the service tax and interest is paid for the delayed payments before issuance of Show Cause Notice, the provisions of Section 73(3) of the Finance Act, 1994 require no service of Show Cause Notice. The Hon'ble High Court of Karnatakas decision in the case of CST, Bangalore Vs. Master Kleen [2012 (25) S.T.R. 439 (Kar.)] and the Tribunals decisions in the cases of CCE&ST, Guntur Vs. OTS Advertising Pvt. Ltd. [2013 (32) S.T.R. 303 (Tri. Bang.)] and U.B. Engineering Ltd. CCE, Rajkot [2009 (16) S.T.R. 457 (Tri. Ahmd.) have held to the same effect.
5. By following the said decisions, I find no merits in the appeal filed by the Revenue. Accordingly, the appeal filed by the Revenue is rejected.
(Dictated and pronounced in the Open Court) (Archana Wadhwa) Member (Judicial) SSK -3-