Custom, Excise & Service Tax Tribunal
M/S. Mmtc Ltd vs Commr. Of Central Excise, Bbsr-I on 5 December, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EAST REGIONAL BENCH : KOLKATA
Service Tax Appeal No: 142/2010
(Arising out of the Order-in-Appeal No.05/ST/B-I/2010 dated-03/02/2010 passed by the Commissioner (Appeals), Central Excise, Customs & Service Tax, BBSR)
SHRI P.K. CHOUDHARY, HONBLE JUDICIAL MEMBER
M/s. MMTC Ltd.
APPELLANT(S)
VERSUS
Commr. of Central Excise, BBSR-I
RESPONDENT(S)
APPEARANCE Sri Avra Majumder, Advocate FOR APPELLANT(S) Sri A.K. Biswas, Supdt. (A.R.) FOR THE RESPONDENT(S) CORAM:
SHRI P.K. CHOUDHARY, HONBLE JUDICIAL MEMBER DATE OF HEARING & DECISION: 05/12/2016 FINAL ORDER NO.FO/A/76414/2016 Per SHRI P.K. CHOUDHARY Heard both sides and perused the appeal records.
2. The appellant has preferred this appeal against the impugned order upholding the order of the lower authority imposing penalty under Section 76. M/s. MMTC Ltd., BBSR, the appellant herein are engaged in export of various minerals and ores as well as providing service to M/s. Nilachal Ispat Nigam Ltd. (M/s. NINL) as an exclusive agent for marketing and sales both for India and abroad. The period of dispute relates to 2005-2006 and the tax has been deposited on 4/09/2008 after issuance of the show cause notice but before passing of the adjudication order. The appellants have not disputed the payment as pointed out to them and have paid the entire demand with interest.
3. I find from the records that the appellant is a public sector undertaking. The Ld. Advocate Sri Avra Majumder, vehemently argued that the service tax was paid on actual commission received from NINL for sale of their goods as per the records available at the time of filing of the Service Tax Returns. The final statement of accounts of NINL was available only at the time of finalization of the accounts and as soon as the discrepancy was noticed, the entire amount of service tax, education cess was paid alongwith interest. On perusal of the records, I do not find any material that the appellant deliberately and knowing fully well failed to discharge the duty liabilities. The Honble Supreme Court in the case of Union of India Vs. Rajasthan Spinning & Weaving Mills- (2009) 13 SCC 448 observed that penalty under section 11AC can be imposed for assessees act of deliberate deception with intention to evade duty by adopting any of the means in that section.
4. I find that in the facts and circumstances of the case, the appellant has made out a case for waiver of penalty imposed under Section 76 of the Finance Act, 1984. Accordingly, I invoke the provisions of Section 80 as there has been a reasonable cause of not discharging the service tax well within the time. The penalty is set aside and the appeal is allowed in the above terms.
(Operative part of the order already pronounced in the Court) Sd/-
(P.K. CHOUDHARY) JUDICIAL MEMBER k.b/-
Service Tax Appeal No: 142/2010 3