Custom, Excise & Service Tax Tribunal
Fanuc India Pvt Ltd vs Commissioner Of Central Excise And ... on 18 November, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No . 26959 / 2013 Application(s) Involved: ST/MISC/25284/2013 in ST/174/2008-SM ST/Stay/103/2008 in ST/174/2008-SM Appeal(s) Involved: ST/174/2008-SM [Arising out of Order in Appeal 5-2008 dt 04/02/2008 passed by CCE&ST(Appeals), Bangalore FANUC INDIA PVT LTD 41-A, ELECTRONICS CITY HOSUR ROAD, BANGALORE Appellant(s) Versus Commissioner of Central Excise and Service Tax - BANGALORE-LTU 100 FT RING ROAD JSS TOWERS, BANASHANKARI-III STAGE, BANGALORE, KARNATAKA 560085 Respondent(s)
Appearance:
B.V KUMAR LAW ASSOCIATES #103,17TH "C" MAINROAD, 5TH BLOCK, KORAMANGALA , BANGALORE KARNATAKA 560095 For the Appellant Mr. S. Teli, Deputy Commissioner(AR) For the Respondent CORAM:
Honble Shri B.S.V. Murthy, Technical Member Date of Hearing: 18/11/2013 Date of Decision: 18/11/2013 Order Per : B.S.V. Murthy The issue involved in this appeal relates to the liability of service tax on the services received from abroad for the period from 16/06/2005 to 17/04/2006. The appellants are challenging only penalty imposed on them and the liability of service tax has already been discharged.
2. The learned counsel on behalf of the appellants submitted that as per the decision of the Honble High Court of Bombay in the case of Indian National Shipowners Association Vs. UOI [2008-TIOL-633-HC-MUM-ST], the service tax could not have been collected from the receiver in respect of the services received from abroad during the period prior to 18/04/2006. Therefore there is no liability of service tax at all leave alone imposition of penalty. He submits that while filing the appeal, the appellants had challenged only the penalty since at that time the decision of the Honble High Court of Bombay was not available. He submits that appellant may be held to be eligible for refund of the amount paid which was not at all due. He also submitted that when service tax itself was not liable, the question of imposition of penalty would not arise.
3. I find myself in full agreement with the submissions of the learned counsel as regards imposition of penalty in view of the decision of the Honble High Court of Bombay relied upon by the counsel. However, as regards the eligibility of the appellant to refund, the issue is not before me and in the absence of any challenge to the liability at all stages till now and in view of the fact that the appellant had discharged the liability, I consider that it may not be appropriate for me to go into the question which was not at all an issue till now and it was not an issue even in the appeal memorandum but has been mentioned and argued only today. Therefore, I would not like to go into the issue at all. As regards penalty, when the service tax itself is not liable to be paid, question of imposition of penalty would not arise. Accordingly, penalty imposed on the appellants is set aside. Appeal is allowed.
(Operative part of this order was pronounced in the court on conclusion of the hearing) B.S.V. MURTHY TECHNICAL MEMBER Raja.
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