Custom, Excise & Service Tax Tribunal
The Commissioner Of Central Excise vs Cummins Generator Technologies India ... on 1 October, 2009
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No.II APPEAL No.E/846/08 & E/CO-129/08 (Arising out of Order-in-Appeal No.RKR(162)/05/2008 dated 04/04/2008 passed by Commissioner of Central Excise & Customs (Appeals), Aurangabad) For approval and signature: Honble Mr. Ashok Jindal, Member (Judicial) ====================================================
1. Whether Press Reporters may be allowed to see :
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 : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental : authorities?
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The Commissioner of Central Excise,
Aurangabad Appellants
Vs.
Cummins Generator Technologies India Ltd., Respondents
Appearance:
Shri.K. Lal, SDR for Appellants
Ms. Aparna Hirandagi, Advocate for Respondents
CORAM:
Mr. Ashok Jindal, Member (Judicial)
Date of Hearing : 01/10/09
Date of decision : 01/10/09
O R D E R No:..
Per: Ashok Jindal
1. This appeal is preferred by the Revenue on the grounds that the equivalent amount of penalty be imposed against the reduction of the penalty on the respondents.
2. The issue involved in this case is that whether the respondents are entitled to take Cenvat credit on the input service credit of the service tax paid on the outdoor catering service. Service tax demand was confirmed against the respondents by the lower authorities, but the lower appellate authority has reduced the penalty to Rs.15,000/- against the penalty of Rs.1,25,877/-. Aggrieved from the same, the Revenue is before me for confirmed equivalent amount of penalty.
3. Shri K. Lal, Ld. SDR appearing on behalf of the Revenue submits that when a demand of Rs.1,25,877/- was confirmed against the respondents, the lower appellate authority has no power to reduce the penalty to Rs.15,000/- and the penalty amount be raised to equivalent amount of service tax demand.
4. On the other hand, Ms.Aparna. Hirandagi, Ld. Advocate appearing on behalf of the respondents submits that against the said impugned order, the respondents have also preferred an appeal before this Tribunal against the confirmation of the service tax demand in the impugned order and the same has been held in favour of the respondents by allowing the Cenvat credit available to the respondents on Outdoor Catering Service by order No.A/316/2009/SMB/C-IV dated 23/06/2009 in Appeal No.R/860/08. She also placed the copy of the said order on record. She further submits that when there is no service tax demand against the respondents, penalty cannot be demanded at all and further prayed that appeal filed by the Revenue be dismissed.
5. Heard.
6. Considering the submissions made by both the parties before me, I find that this Tribunal has already held that there is no service tax demand against the respondents. In that event, the penalty cannot be imposed on the respondents. Accordingly, I do not find any force in the submissions made by the Ld. SDR.
7. With these observations, I do not find any merit in the appeal and the same is dismissed.
(Pronounced in Court) (Ashok Jindal) Member (Judicial) pj 1 3 2