Customs, Excise and Gold Tribunal - Calcutta
Utkal Agro Industries Pvt. Ltd., Orissa ... vs Cce & C on 30 January, 2003
Equivalent citations: 2003(88)ECC274, [2007]9STT182
JUDGMENT Smt. Archana Wadhwa, Member (J)
1. The prayer in the miscellaneous applications is for condonation of delay in filing the present appeals. Delay is of about two months. It has been explained that the impugned order was received in the month of June 2002 and was handed over to one Advocate Shri Kishori Mohan Das for preparation of appeal. However, the said advocate subsequently fell ill and ultimately expired on 7.11.2002. The appellants contacted his office to collect back the documents which took some time and ultimately the appeal was filed after getting the documents from the said advocate. In view of the above circumstances explained, I condone the delay and take up the stay petitions and appeals in all the four cases together.
2. The Asstt. Commr. vide his impugned order-in-original directed the appellants to pay service tax due from them alongwith interest for the period December 1997 to June 1998. He also imposed personal penalties of Rs. 100 and Rs. 200 on each of the appellants. On an appeal against the above order Commissioner (Appeals) observed that as there was no proposal in the show cause notice to confirm demands of service tax, same are not sustainable. However he upheld the order of imposition of personal penalties upon the appellants under the provisions of Section 70 of the Finance Act, 1994 for contraventions of not filing the sale tax returns in time. The appellants have contended that during the relevant period the Hon'ble Supreme Court in the case of Laghu Udyog Bharti, 1999 (65) ECC 687 (SC) : 1999 (87) ECR 54 (SC) was in existence and as such they were not liable to pay service tax or to file the returns. It is that the Finance Act, 2000 that the tax was imposed against them with retrospectively. In these circumstances failure on the part of the appellants to file the service tax returns would not attract penalty.
3. After hearing Shri A.K. Mondal, Ld. SDR I agree with the above submissions of the appellants. During the relevant period the provisions of service tax vide which the appellants were under a liability to pay the same were held to be ultra vires by the Supreme Court by the above decision of the Laghu Udyog Bharti. As such failure on the part of the appellants not to pay service tax or not to file the service tax returns cannot be held to be contraventions of the provisions of the service tax. Accordingly I set aside the penalty imposed upon all the four appellants and allow their appeal with consequential relief to them.
Dictated in the court.