Custom, Excise & Service Tax Tribunal
Panipat Refinery vs Cce-Rohtak on 14 May, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL R.K. PURAM, WEST BLOCK NO. 2, NEW DELHI-110066 COURT NO. I Date of hearing/order: 14/05/2015 Appeal No. ST/756/2008-CU[DB] [Arising out of order-in-original no. 24/Commr/SU/08/ST passed by the Commissioner Central Excise & Service Tax Rohtak] 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? M/s. Petron Engineering Constructions Ltd. C/o Panipat Refinery Appellant Vs. CCE-Rohtak Respondent
Appearance: Shri Bipin Garg, Advocate for the appellant Shri Govind Dixit, DR for the respondent Coram: Honble Mr. Justice G. Raghuram, President Honble Shri R.K. Singh, Member (Technical) Final Order No. 52080/2015 Per: R.K. Singh Appellant has filed this appeal against order-in-original dated 14/07/2008 in terms of which service demand of Rs. 95,10,513/- for the period from 01/04/2005 to 31/03/2006 was confirmed along with interest under erection commission or installation service. Penalty of Rs. 1000/- under Section 77 and the mandatory equal penalty of Rs. 95,10,513/- under Section 78 of the Finance Act 1994 was also imposed.
2. The Ld. Advocate for the appellant during hearing stated that the appellant was not contesting the demand or interest on merit (which has already been deposited) nor was it contesting penalty of Rs. 1000/- imposed under Section 77 ibid. It was only contesting the amount of penalty under Section 78 ibid as the option of reduced penalty of 25% (of equal mandatory penalty) was not extended to it by the adjudicating authority and the same should be extended by CESTAT. It claimed it has already deposited the reduced (25%) penalty also.
3. We have considered the appellants plea. The appellant has clearly stated that they are not contesting the impugned service tax demand and interest thereon and penalty under Section 77 ibid. It is only pleading that the benefit of reduced penalty of 25% of mandatory equal penalty under Sector 78 ibid should be extended to it, more so when the same has already been deposited. We find that adjudicating authority has not extended the said benefit of reduced (25%) penalty in the impugned order.
It has been held by Gujarat High Court in the case of CCE-Ahemdabd Vs. Ratanmani Metals and Tubes Ltd. [013-TIOL-1124-HC-AHM-CX] that Court has followed a consistent view that the assessee is required to be given the option by the adjudicating authority where he is asked to pay a duty demand with interest and 25% of penalty within 30 days from the date of adjudication and in such case, he would be liable to pay only 25% of the penalty - since no option was given, the Tribunal can award such an option to the assessee. Following the ratio laid down by the Honble Gujarat High Court, we dismiss the appeal except to the extent that the mandatory equal penalty under Section 78 is reduced to 25% of 95,10,513/- provided the same along with the impugned demand and interest stands paid within 30 days of the communication of this order; any amounts already paid towards the said liabilities will be counted for this purpose.
(Justice G Raghuram) President (R.K. Singh) Member (Technical) Ritu 3