Custom, Excise & Service Tax Tribunal
M/S.South Eastern Coal Fields Ltd vs Cce, Raipur on 14 September, 2011
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
DIVISION BENCH
Service Tax Appeal No.460-461 of 2008 with
ST/CO/35/2009
(Arising out of OIO No.COMMISSIONER/RPR/36/2008 and OIO No.COMMISSIONER/RPR/37/2008 dt.09.4.08 passed by the CCE, Raipur)
Date of Hearing/Decision: 14.09.2011
For approval and signature:
Honble Mrs.Archana Wadhwa, Member (Judicial)
Honble Mr.Rakesh Kumar, Member (Technical)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should 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 Departmental authorities?
M/s.South Eastern Coal Fields Ltd. Appellant
Vs.
CCE, Raipur Respondent
Present for the Appellant: Shri Kishore Kunal, Advocate
Present for the Respondent: Shri Sunil Kumar, SDR
Coram: Honble Mrs.Archana Wadhwa, Member (Judicial)
Honble Mr.Rakesh Kumar, Member (Technical)
ORDER NO._______________
PER: ARCHANA WADHWA
Both appeals, one arising out of order passed by the Commissioner and other by the Commissioner (Appeals), are being disposed by a common order as the issue involved is identical.
2. Vide impugned order, the lower authorities have confirmed the service tax against the appellants on the ground that transportation of coal from mining sites to a specified locations within the mine or outside the mines is taxable under the category of transport of goods by road service. The appellant is not aggrieved with the said confirmation of the demand of duty. The challenge in the present appeal is to imposition of penalty under section 76 & 77 of the Finance Act, 1994.
3. Learned Advocate appearing for the appellant draws our attention to the said order vide which the penalty under section 78 stands not imposed by the adjudicating authority as well as by the appellate authority on the ground of bonafide. However, they have imposed penalty under sections 76 & 77 of the Finance Act, 1994. It is the contention of the learned Advocate that once the benefit of section 80 stands given to them for the purpose of imposition of penalty under section 78, the same benefit is required to be extended to penalties imposable under section 76 & 77 ibid.
4. Our attention also stands drawn to another order passed by the Commissioner (Appeals) in the case of Western Coal Fields Ltd. wherein while taking note of the Boards circular F.No.232/2/2006-CX.4 dt.12.11.07, the Commissioner (Appeals) has held that as there was no malafide, there is no question of imposition of penalty under section 78 of Finance Act, 1994. By taking into consideration, the Tribunal decision in the case of The Financers vs. CCE reported in 2007 (8) STR 7 (Tri.-Del.) and the fact that there existed during the material time as sufficient cause within the purview of section 80 ibid, the penalty imposable under sections 76 & 77 was set aside. Learned Advocate submitted that the said order of the Commissioner (Appeals) is in respect of the same disputed issue and stands accepted by the Revenue. As such, the prayer is to set aside the penalty under section 76 & 77 ibid.
5. After hearing learned SDR, we find that admittedly the penalty under section 78 stands waived by the authorities below, in terms of the provisions of section 80. If that be so, there is no justification for imposition of penalty under section 76 & 77 ibid. The Tribunal in the case of Anil Kumar Yadav vs. CCE, Pondicherry reported in 2011 (22) STR 20 (Tri.-Chennai) has held that once the provisions of section 80 are invoked, the lower authorities have no jurisdiction to impose penalty under section 76 & 77 ibid and to waive penalty under section 78. The penalty under all the said sections are required to be waived once reasonable cause has been held to be existing.
6. Admittedly, in the present case, the lower authorities have invoked the provisions of section 80 and has not imposed any penalty under section 78. The said part of the order does not stand challenged by the Revenue. As held by the Tribunal in the case of Anil Kumar Yadav, once the provisions of section 80 stands invoked, the same would be applicable in respect of penalties imposable under section 76,77 & 78 ibid. As such, we find no justification for imposition of penalty under section 76 and 77. The same are accordingly set aside. But for setting aside all the penalties under section 76 & 77 in both the appeals, the impugned orders are otherwise upheld. Both appeals are disposed of in the above terms. Cross objection is also disposed of.
(Pronounced in the open court) (ARCHANA WADHWA) MEMBER (JUDICIAL) (RAKESH KUMAR) MEMBER (TECHNICAL) mk 5