Custom, Excise & Service Tax Tribunal
M/S Utkarsh Tubes & Pipes Ltd vs Commissioner Of Central Excise & ... on 10 May, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
S.T.Appeal No.518/12
Arising out of O/O No.51/Commissioner/ST/Haldia/Adjn/2012 dated 24.09.2012 passed by Commr. of Central Excise & Service Tax, Haldia.
M/s Utkarsh Tubes & Pipes Ltd.
APPELLANT(S)
VERSUS
Commissioner of Central Excise & Service Tax, Haldia
RESPONDENT (S)
APPEARANCE Shri N. K. Chowdhury, Advocate for the Appellant (s) Shri A. K. Biswas, Supdt. (A.R.) for the Department CORAM:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DATE OF HEARING & PRONOUNCEMENT : 10. 05. 2013 ORDER NO.A-138/KOL/13 Per Dr. D. M. Misra :
This is an appeal filed against the Order-in-Original No.51/Commissioner/ST/Haldia/Adjn/2012 dated 24.09.2012.
2. Briefly stated the facts of the case are that the appellants are engaged in the manufacture of excisable goods and also they have registered with the Department for providing erection, commissioning and installation services as well as the services under Goods Transport Agency (GTA). The appellant was issued with a demand notice on 9.3.2011 for recovery of cenvat credit of Rs.59,01,414/- irregularly taken and also taken service tax of Rs.3,51,382/- under Section 73 (1) of the Finance Act, 1994. The ld. Commissioner has dropped the demand of Rs.59,01,414/- and confirmed the demand of Rs.3,51,382/- and imposed equivalent amount of penalty under Section 78 of the Finance Act, 1994 ; besides, the payment of interest under Section 75 of the Finance Act, 1994. Aggrieved by the said order, the appellants are in appeal to the extent of imposition of penalty of Rs.3,51,382/- under Section 78 and interest under Section 75 of the Finance Act, 1994.
2. At the outset, the ld. Advocate, Shri N. K. Chowdhury, appearing for the applicant has submitted that as per Rule 2 (d) of Service Tax Rules, 1994, the Appellants were required to pay the service tax on such GTA services being receiver of the said service. The contention is that the total value of taxable services received by them, were reflected in their balance sheet, however, while discharging the service tax on the said GTA service, they have excluded the payments made to small transporter, where the value of the transport services were less than Rs.750/-/1500/- per consignment. Further, he has submitted that when it was pointed out by the visiting Audit Officials to pay service tax on the said amount, they have paid the service tax, even though they were not required to make payment on such value of GTA services received. The ld. Advocate has vehemently argued that the imposition of penalty under section 78 of the Finance Act, 1994, is not warranted as no fact was ever suppressed by them from the Department, nor mis-declared to the Department with intent to evade payment of service tax. In his support, he has relied upon the Tribunals decisions in the cases of Dixit Security & Investigation (Pvt.) Ltd. Vs. Commr. of Central Excise, Ahmedabad reported in 2011 (22) STR 448 (Tri.-Ahmd.) and M/s Manpasand Manpower Pvt. Ltd. Vs. Commr. of Service Tax, Kolkata, reported in 2013-TIOL-702-CESTAT-KOL.
3. The ld.A.R. appearing for the Department, on a query from the Bench, has submitted that the Department has accepted the order of the adjudicating authority. The ld. A.R. for the Department has reiterated the findings of the ld. Commissioner in respect of imposition of penalty of Rs.3,51,382/- under Section 78 of the Finance Act, 1994.
4. Heard both sides and perused the records. I find that the present demand of Rs.3,51,382/-, is on account of difference in the amount of gross taxable value of services shown in the respective balance sheet and the ER-I Returns filed by the Department during the relevant period from 2007-2008 to 2008-2009. I find that during the course of Audit, the Department has raised an objection about two different figures reflected in ST-3 Returns and Balance Sheet and consequently, the appellants were directed to make payment on the service tax on the differential value, to which they complied with. The ld. Advocate has submitted that no facts were suppressed in ST-3 Returns as well as in the Balance Sheet, hence, there is no suppression of facts nor any mis-declaration with intent to evade payment of service tax. He has also submitted that the value between the ST-3 Returns and Balance Sheet did not tally due to inclusion of exempted value of GTA service. I find force in the arguments of the ld. Advocate. I find that this Tribunal in the case of M/s Manpasand Manpower Pvt. Ltd. Vs. Commr. of Service Tax, Kolkata, reported in 2013-TIOL-702-CESTAT-KOL, held that once all the facts are reflected in the ST-3 Returns as welll as in the Balance Sheet, the allegation of suppression of facts is untenable and accordingly, imposition of penalty under Section 78 of the Finance Act, 1994, is unwarranted. Accordingly, the penalty imposed under Section 78 is bad in law and the order of the ld. Commissioner is set aside to the extent of imposition of penalty under Section 78 of the Finance Act, 1994. Appeal is partly allowed on the above terms.
( Dictated and pronounced in the open Court) Sd/ (DR. D.M.MISRA) MEMBER (JUDICIAL) mm 4 S.T. Appeal No.518/12