Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs Unknown on 23 October, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT-II
Appeal No.ST/295/09
Arising out of OIA No.376/(338-RAJ)/2009/COMMR(A)/RAJ, dt.28.04.09
Passed by: Commissioner of Central Excise (Appeals), Rajkot
For approval and signature:
Honble Mr. B.S.V. Murthy, Member (Technical)
1. Whether Press Reporters may be allowed to see the No
Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen
the order?
4. Whether order is to be circulated to the Departmental Yes
authorities?
Appellant/s CCE Rajkot
Represented by Shri R. Nagar (SDR)
Vs.
Respondent/s M/s. V.M. Engineering Works
Represented by None CORAM:
MR. B.S.V. MURTHY, MEMBER (TECHNICAL) Date of Hearing:23.10.09 Date of Decision:23.10.09 ORDER No. /WZB/AHD/2009 Per: B.S.V. Murthy:
M/s. V.M. Engineering Works has been registered as a service provider of construction service and during the scrutiny of their periodical returns it was noticed that appellants had made payment of service tax belatedly in respect of two quarters from April, 2007 to December, 2007. Proceedings were initiated which resulted in imposition of penalty of Rs.22,800/- under Section 76 of the Finance Act, 1994 on the respondents. On an appeal filed by them, the Commissioner (Appeals) in the impugned order reduced the penalty from Rs.22,800 to Rs.8,000/-.
2. The Revenue is in appeal against the lenient view taken by the Commissioner (Appeals) as regards penalty leviable by resorting the Provisions of Section 80 of the Finance Act, 1994 on the ground that this case is not a fit case for lenient view under Section 80 of the Finance Act, 1994.
3. Nobody has appeared on behalf of the respondents. Heard the learned DR. He submits that this was not a fit case for reduction of penalty by resorting to Provisions of Section 80 of Finance Act, 1994 and he relies upon the following decisions of the Tribunal in support of his contention that penalty should have been imposed.
1. CCE & STC, Bangalore Vs. First Flight Couriers Ltd. [2007 (8) STR 225 (Kar.)]
2. CCE Delhi Faridabad Vs. ILLPEA Paramount Pvt. Ltd. [2006 (4) STR 416 (P & H)]
3. Union of India Vs. Aakar Advertising [2008 (11) STR 5 (Raj.)]
4. ETA Engineering Ltd. Vs. CCE Chennai [2006 (3) STR 429 (Tri. LB)]
4. I have considered the submissions made by learned DR and the memorandum of appeal. I find that the Commissioner has considered the issue and for better appreciation I reproduce the relevant paragraphs of the order.
6. I find that there is a total delay of 25 days and 86 days respectively in payment of Service Tax of Rs.45,235/- & Rs.61,260/- respectively. I further find that the appellants are not new to the Service Tax regulations as they are holders of registration since 2005-2006. In this context, it is also relevant from the submissions of the appellants that this is the first time lapse till date.
7. From the amount of Service Tax liability discharged by them I find that they are small unit and for a total Service Tax liability of Rs.1,06,495/- they have already paid Rs.2,304/- as an interest and looking to their first default and volume of turnover I am inclined to take a lenient view as far as penalty under Section 76 is concerned. I also rely on the decision of the Tribunal in the case of CCE, Rajkot V/s. Shri B.S.G.K. Shastry in Appeal No:Service Tax/120, 121/2008, CCE, Rajkot V/s. Port Officer, Okha in Appeal No:Service Tax/126/2008 wherein it has been held that penalty under Section 76 of Finance Act, 1994 can be reduced or set aside under Section 80 of the Finance Act, 1994.
8. In light of above discussions, I reduce the penalty of Rs.22,200/- imposed under Section 76 of the Finance Act, 1994 by the Lower Authority to Rs.8,000/- by invoking Section 80 of Finance Act, 1994.
5. I agree with the rationale adopted by the Commissioner (Appeals) in coming to the conclusion that the respondents deserve a lenient treatment by resorting to the Provisions of Section 80 of Finance Act, 1994. Therefore, I find no reason to interfere with the decision of Commissioner (Appeals) and accordingly reject the appeal filed by the Revenue.
(Dictated & Pronounced in Court)
(B.S.V. Murthy) Member (Technical)
jk
??
??
??
??
3