Custom, Excise & Service Tax Tribunal
) Sunil Pharswan Prop. Vs. C.C.E ... vs C.C.E Meerut-Ii on 15 July, 2013
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI
Court No. IV
Appeal No. ST/1821/2010-ST[SM]
Appeal No. ST/1620/2010
(Arising out of OIO No.63/ST/2010 dt.18.02.2010 passed by the Commissioner, Customs & Central Excise, Meerut-II)
Date of Hearing: 15.07.2013
1) Sunil Pharswan prop. Vs. C.C.E Meerut-II Appellant
Vs.
C.C.E Meerut-II Respondent
2) CCE & ST-Meerut-ii, Appellant
Vs
Sunil Frurshwan Prop. Respondent
Appearance:
Sh. A. Jaju, Advocate for the Appellant
Sh. P.K. Sharma, AR for the Respondent
Coram: Honble Sh. Manmohan Singh Member (Technical)
Final Order: 57094-57095/2013
Per Manmohan Singh:
This is the appeal filed by the department against Order-in-Appeal No.305-ST/MRT-II/2010 dated 31/08/2010. There is also appeal from the side of M/s Sunil Frurshwan. It is the grievance of the department that despite an appeal having been filed by the department against Order-in-Original No.63/ST/2010 dated 18/2/2010 for non imposition of penalty by the Assistant Commissioner on M/s Sunil Pharswan Proprietor and their company M/s Shiva Cable network. Commissioner (Appeal) did not impose any penalty on the respondent despite the fact that there was delay in filing returns. Demand of Rs.7,74,760/- was confirmed.
2. Shri Jaju advocate appeared on the behalf of the respondent. He further pleads that judgments was not followed in their case despite their having taken the matter before the Commissioner (Appeal). He further pointed out that detailed cross objections have been filed by them through speed post containing the calculation indicating deposit of service tax and details of interest but those factors were also not taken into consideration and order was passed. He requested that their statement is available on record and has raised important issues and details which were not considered. He submitted that case deserves to be sent back to the Commissioner (Appeal) for re-evaluation of the appeal for taking into consideration points/submissions raised above.
3. Shir P.K. Sharma, AR appearing on the behalf or the respondent advocates that imposition of penalty under section 77 and Section 78 has not been imposed and requires to be imposed. He submitted that thus requires reconsideration at Commissioner (Appeal) level and penalties under both sections are required to be imposed and in the interests of Revenues, the case needs to be remanded back to the Commissioner (Appeal).
4. He further submitted that exclusion clause under section 78 was inserted with effect from 10/05/2008 and the period involved in the present appeal is prior to amendment. Imposition of penalty under section 77 and section 78 need to be considered.
5. Heard both sides I find that issue regarding imposition of penalty u/s 76 and Section 78 has been decided in Kerala High Court judgment in Krishna Poduval 2006 (1) STR (Ker), wherein it is held that incident of imposition of penalty are distinct and separate under two provisions and even if offences are committed in course of bogus transactions or arising out of the same act, penalty imposable for ingredients of both offences.
6. Similarly there is force in the contentions of the respondents that details given in the cross objection have not been considered at all by Commissioner (Appeal).
7. In view of the above, I find that this is fit case for being remanded back to the Commissioner (Appeal) for reconsideration of departmental contentions for imposition of the penalty under section 77 and 78 as well as for consideration of the pleadings of the respondents.
8. In view of the above, both appeals are remanded back to Commissioner (Appeal). Appeals of the department and counter appeal of the respondent are disposed of by way of remand. Commissioner (Appeal) is directed that these appeals must be decided within three months of the issue of the order.
(Order dictated in the open court) (Manmohan Singh) Member (Technical Satish ??
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