Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise vs Rudra Galaxy Channel Ltd on 11 December, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI COURT No. II APPEAL No.ST/154 & 158/07 (Arising out of Order-in-Appeal No.RKR(113)54/2007 dated 12/06/2007 passed by Commissioner of Central Excise & Customs (Appeals), Aurangabad) For approval and signature: Honble Mr. P.R. Chandrasekharan, Member (Technical) Honble Mr. Anil Choudhary, Member (Judicial) 1. Whether Press Reporters may be allowed to see :No 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 :Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether Their Lordships wish to see the fair copy :Seen of the Order? 4. Whether Order is to be circulated to the Departmental :Yes authorities? ========================================
Commissioner of Central Excise, Appellant Aurangabad Vs. Rudra Galaxy Channel Ltd., Respondent Rudra Galaxy Channel Ltd., Appellant Vs. Commissioner of Central Excise, Respondent Aurangabad Appearance:
Shri.Rakesh Goyal, Addl. Comm. (AR) for appellant None for respondent CORAM:
Honble Mr. P.R.Chandrasekharan, Member (Technical) Honble Mr.Anil Choudhary, Member (Judicial) Date of Hearing : 11/12/2013 Date of Decision : 11/12/2013 ORDER NO Per: P.R.Chandrasekharan
1. The appeals are directed against Order-in-Appeal No.RKR(113)54/2007 dated 12/06/2007 passed by Commissioner of Central Excise & Customs (Appeals), Aurangabad.
2. Vide the impugned order, the Ld. Commissioner while confirming the demand of Rs.11,23,798/- along with interest thereon for the period 01/11/2004 to 30/09/2005 on the appellant, M/s.Rudra Galaxy Channel Ltd. has reduced the penalty imposed on the appellant to Rs.4,50,000/-.
3. The appellant, M/s.Rudra Galaxy Channel Ltd. are aggrieved of the said order on two grounds. The first ground taken is that though they are not disputing the tax liability, the consideration received should be treated as cum tax. The second ground taken is that the penalty should be waived.
4. The Revenue has also come up with appeal against the said order on the ground that reduction of penalty to Rs.4.5 lakhs by the appellate authority is incorrect in law. Inasmuch as the minimum penalty imposable was equal to the tax demand confirmed and the maximum amount of penalty imposable was twice the amount of tax demand confirmed, there is no discretion given to the lower appellate authority to reduce the penalty below the minimum limit prescribed in the law.
5. None appeared for the appellant. When the case come up for hearing earlier on 21/06/13, then also none appeared; thereafter the case was adjourned to 13/08/2013, 19/09/2013, 31/10/2013 and finally today. Today is the fifth time the appeal is coming up for hearing and none appeared for the appellant. Therefore, we take up the appeal for consideration and disposal as a number of opportunities has provided to the appellant for defending his case which he has not availed.
6. The Ld. AR appearing for the Revenue submits that the reduction in penalty by the lower appellate authority is incorrect in law and relies on the decision of the Honble High Court of the Rajasthan in the case of UOI Vs. Shiv Ratan Advertisers [ 2008 (12) STR 690 (Raj.)] wherein it was held that penalty is not reducible below the minimum prescribed. As regards, the abatement towards the service tax from the total consideration received, the Ld. Additional Commissioner (AR ) submits that there is nothing on record to show that the appellant had collected the consideration inclusive of service tax and there is no documentary evidence to support this claim. Therefore, in view of the decision of the Honble Apex Court in the case of Amrit Agro Industries Ltd. Vs. CCE, Ghaziabad 2007 (210) ELT 183 (SC) the appellant is not entitled for the benefit of cum tax value.
7. We have considered the submission made by the Ld.AR and perused the records.
7.1 From the appeal memorandum it is evident that the appellant is not disputing the tax liability. However, he is seeking abatement towards the tax from the total consideration received; however, there is no documentary evidence available on record to show that the amount received by the appellant was cum tax. In the absence of such a documentary evidence it is difficult to accept the submission of the appellant that consideration received should be treated as cum tax. In the Amrit Agro Industries Ltd. case (supra) the Honble Apex Court held that unless it is shown by the manufacturer that price of goods includes excise duty payable by him, no question of exclusion of duty element from price will arise for determination of value. Thus, in the absence of any documentary evidence cum tax benefit cannot be granted to the appellant. Thus, we are unable to consider the plea of the appellant that consideration received should be treated as cum tax. As regards the penalty, the rule as it stood in the relevant time prescribed a minimum penalty equal to the service tax demand confirmed and a maximum penalty which was twice the amount of service tax confirmed. Therefore, discretion was available to the appellate authority only within the minimum value and the maximum value and there was no discretion given to the authority under the law for reducing the penalty. Therefore, following the decision in the case of Shiv Ratan Advertisers (cited supra), the reduction in penalty by the lower authority below the minimum prescribed is not sustainable in law. Consequently, the appellant would be liable to pay penalty equal to the service tax demand confirmed in the order of the adjudicating authority. Thus, the appeal filed by the appellant, M/s.Rudra Galaxy Channel Ltd. is rejected and the appeal filed by the Revenue is allowed.
(Dictated in Court) (Anil Choudhary) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) pj 1 5