Custom, Excise & Service Tax Tribunal
Mangal Industries Ltd vs Commissioner Of Central Excise, ... on 24 December, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 22402 / 2014 Application(s) Involved: ST/Stay/23290/2014 in ST/22781/2014-SM Appeal(s) Involved: ST/22781/2014-SM [Arising out of Order-in-Appeal No. 10 & 11/2014 dated 15/04/2014 passed by the Commissioner of Customs, Central Excise & Service Tax, Guntur] Mangal Industries Ltd. S. No. 327/3, 332,330, Cuddappa Road, Tenepalli Village, Rangampeta Cross, Chittoor 517 124 Andhra Pradesh Appellant(s) Versus Commissioner of Central Excise, Customs & Service Tax, Tirupati 9/86-A, Behind West Church Compound, Amaravathi Nagar, M.R. Palli 517 502 Andhra Pradesh Respondent(s)
Appearance:
Mr. S. Narayanan, Advocate Flat No. 5, 2nd Floor, Balaji Complex, Opp. Yashwantrao Chavan Auditorium, Kothrud, Pune 411 038 For the Appellant Mr. S. Ila, AR For the Respondent CORAM:
HON'BLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER Date of Hearing: 24/12/2014 Date of Decision: 24/12/2014 Order Per: B.S.V. MURTHY The learned counsel submitted that the appeals are against a common order No. 10 & 11/2014 dated 15.04.2014 which considered the appeal filed against two orders-in-original which had been passed in respect of two show-cause notices issued to the appellants. The service tax demand was proposed in respect of Clearing and Forwarding Services and Business Auxiliary Service. As regards the Clearing and Forwarding Service, the appellants have no grievance and it is not the subject matter before me today. As regards Business Auxiliary Service, the appellants have paid the entire amount of service tax of Rs. 21,85,726/- payable as a receiver of services from the commission agent located abroad. However the Commissioner has confirmed the liability to penalty which has been invoked on the basis of allegation of suppression of facts made in the show-cause notice. As a result while the matter has been remanded in respect of other issues, the Commissioner has confirmed the penalty under Section 78 in respect of demands on Business Auxiliary Service payable as a receiver for extended period. The appellants are aggrieved on this issue.
2. Learned counsel submits that the very same issue as regards imposition of penalty and invocation of extended period had been considered by the Tribunal in the case of Dineshchandra R. Agarwal Infracon Pvt. Ltd. Vs. CCE, Ahmedabad [2010 (18) S.T.R. 39 (Tri.-Ahmd.) and Essar Steel Ltd. Vs. CCE, Surat-I [2009 (13) S.T.R. 579 (Tri.-Ahmd.)] and in both the cases the Tribunal took the view that extended period could not have been invoked and consequential penalty could not have been imposed. However since the matter has already been remanded and if the appellant did not file appeal against the imposition of penalty, that would have attained finality and therefore the appeal.
3. In the circumstances discussed above, I consider that it would serve the interest of justice if the impugned order is set aside and the matter is remanded to original adjudicating authority with a direction to consider the liability to penalty also afresh without taking into account the observations of the learned Commissioner (Appeals) that penalty is imposable. There are several decisions taking a view that where an assessee is paying tax as a receiver, extended period may not be invokable if the situation is revenue-neutral. Therefore the consideration of penalty becomes a question of application of facts and law and it would be appropriate if the learned original adjudicating authority reconsiders the issue in the light of decisions that may be cited and the law and the facts. Accordingly at this stage itself the impugned order is set aside and the matter is remanded to the original adjudicating authority for fresh consideration of this also. Needless to say the appellant shall be given reasonable opportunity to present their case before the matter is finally decided.
(Operative portion of the order has been pronounced in open court on 24.12.2014) (B.S.V. MURTHY) TECHNICAL MEMBER iss