Custom, Excise & Service Tax Tribunal
M/S. Steel India vs Commissioner Of Central Excise And ... on 12 August, 2009
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH:KOLKATA
SERVICE TAX APPEAL NO.86/09
[ARISING OUT OF ORDER-IN-APPEAL NO.23/RAN/2009 DATED 30.01.2009 PASSED BY COMMISSIONER (APPEALS), CENTRAL EXCISE & SERVICE TAX, RANCHI]
FOR APPROVAL AND SIGNATURE OF
SHRI S.S.KANG, HONBLE VICE-PRESIDENT
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
Authorative report or not?
3. Whether His Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/S. STEEL INDIA
APPELLANT(S)/APPELLANT(S)
VERSUS
COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, RANCHI
RESPONDENT(S)
APPEARANCE:
SHRI A.K.SRIVASTAVA, COMPANY SECRETARY FOR THE APPLICANTS/APPELLANTS; SHRI R.K.CHAKRABORTY, J.D.R. FOR THE RESPONDENTS. CORAM:
SHRI S.S.KANG, VICE PRESIDENT DATE OF HEARING/ DECISION: 12.08.09 ORDER NO Per SHRI S.S.KANG Heard both sides.
2. The Appellant filed this Appeal against the impugned Order passed by the Commissioner (Appeals), whereby he held that there is no discretion with the authorities to impose lesser penalty than the confirmed demand. The Commissioner (Appeals) relied on the decision of the Honble Supreme Court in the case of Dharmendra Textiles Processors vs. UOI reported in 2008(231) ELT 3 (SC). Contention of the Appellant is that the decision of the Honble Supreme Court was applied without giving any finding in respect of fraud, suppression of facts, mis-representation etc. with intent to evade payment of duty. The contention is that if there is suppression of facts with intent to evade payment of service tax on part of the assessee, then the ratio of the Honble Supreme Court is fully applicable. In these circumstances, the contention is that the matter be remanded to the Commissioner (Appeals) to decide whether there is any suppression or mis-representation with intent to evade payment of service tax. The contention is also that the Appellant is registered with the Revenue Authorities as a provider of GTA service. Hence, there is no suppression on their part to evade payment of service tax.
3. Contention of the Revenue is that the Appellant had not paid the service tax on due dates and subsequently, paid the service tax along with the interest. Hence, they are liable to penalty.
4. I find that in the impugned Order, the Commissioner (Appeals) after relying on the decision of the Honble Supreme Court in the case of Dharmendra Textiles Processors (supra), held that the penalty is leviable, even if the duty and interest have been paid before issue of show cause notice, and there is no discretion with the authorities to impose lesser amount of penalty than the duty confirmed. In these circumstances, the first thing to be seen is whether there is any suppression or mis-representation with intent to evade payment of service tax. If there is any suppression or mis-representation with intent to evade payment of service tax, then the ratio of the decision of the Honble Supreme Court is fully applicable. In the impugned Order, there is no finding in this regard. Hence, the impugned Order is set aside and the matter is remanded to the Commissioner (Appeals) to decide the issue of imposition of penalty afresh, after affording an opportunity of hearing to the Appellant. The Appeal is thus allowed by way of remand.
Pronounced and dictated in the open court.
Sd/-
(S.S.KANG) VICE-PRESIDENT DUTTA/ 3 SERV. TAX APP. 86/09