Custom, Excise & Service Tax Tribunal
M/S. Shree Ganesh Jee Enterprises vs Commissioner, Central Excise & Service ... on 27 July, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No. ST/76354/2014
(Arising out of Order-in-Appeal No.189/Pat/S.Tax/Appeal/2012 dated 09/10/2012 passed by the Commissioner (Appeals), Customs, Central Excise & Service Tax,Patna)
FOR APPROVAL AND SIGNATURE
Honble Shri H.K.Thakur, Member (Technical)
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 Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s. Shree Ganesh Jee Enterprises
Applicant (s)/Appellant (s)
Vs.
Commissioner, Central Excise & Service Tax, Patna
Respondent (s)
Appearance:
Sri P.K.Ghosh, Consultant for the Appellant (s) Sri S.Mukhopadhyay, Suptd.(AR) for the Respondent (s) CORAM:
Honble Shri H.K.Thakur, Member (Technical) Date of Hearing:- 27.07.2016 Date of Pronouncement :- 27.07.2016 ORDER NO.FO/A/75685/2016 Per Shri H.K.Thakur
1. This Appeal has been filed by the appellant against Order-in-Appeal No. 189/Pat/S.Tax/Appeal/2012 dated 09/10/2012 passed by the Commissioner (Appeals),Patna.
2. Sri P.K.Ghosh (Consultant) appearing on behalf of the appellant argued that appellant is a distributor of M/s. Tata Tele Services Ltd. and selling products of M/s. Tata Tele Services Ltd. like mobile set and SIM card and Recharge Coupons bearing the name of Tata. That the amounts payable to the appellant was directly credited into their account and it was not separately mentioned in the documents that the amounts so credited include the service tax payable.
3. Ld. Consultant argued that appellant is not contesting the issue on merits and has paid the entire amount of service tax and interest before the issuance of show cause notice. That appellant is only contesting the imposition of penalties under Section 76 and 78 of the Finance Act, 1994. It is the case of the appellant that they were ignorant about the service tax provisions and were not aware that the service tax was payable on the activities being done. That service tax payable was not separately shown in the amounts received from M/s. Tata Tele Services Ltd. That the penalties are required to be set aside by virtue of Section 80 of the Finance Act, 1994 as the appellant was under a bonafide belief that service tax is not payable.
4. Heard both side and perused the case records.
5. The issue involved in the present proceedings is whether penalties imposed by the Adjudicating Authority and upheld by the First Appellate Authority can be waived under Section 80 of the Finance Act, 1994. It is observed from the case records that appellant paid the entire amount of service tax along with interest before issuance of show cause notice and is not contesting the same on merits. It is not coming out anywhere from the records that appellant was aware of service tax payment by M/s. Tata Tele Services Ltd. into their account. The entire amount received from M/s. Tata Tele Services Ltd. were shown in the records maintained by the appellant. In view of the above the appellant has a reasonable cause for non-payment of service tax and covered by provisions of Section 80 of the Finance Act, 1994.
6. Appeal filed by the appellant is allowed only to the extent indicated in para-5 above.
(Operative Portion of the order was pronounced in the open court.) S/d.
(H.K.Thakur) MEMBER(TECHNICAL)
SS
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Appeal No.ST/76354/14