Custom, Excise & Service Tax Tribunal
Kerala State Co Operative Rubber ... vs Commissioner Of Central Excise, ... on 22 November, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/20814/2017-SM [Arising out of Order-in-Appeal No. COC-EXCUS-000-APP-19-2017 dated 22/02/2017 passed by the Commissioner of Central Excise, Customs and Service Tax, Cochin (Appeals)] Kerala State Co Operative Rubber Marketing Federation Ltd. Intermix Factory Kattampack Po Kaduthuruthy Kottayam 686 612 Kerala Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax, Cochin C.R Building, I.S Press Road, Ernakulam, Cochin 682 018 Kerala Respondent(s)
Appearance:
Shri Abraham Markos, Advocate 42/2260, Providence Road Cochin 682 018 Kerala For the Appellant Dr. J. Harish, Deputy Commissioner (AR) For the Respondent Date of Hearing: 22/11/2017 Date of Decision: 22/11/2017 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 22876 / 2017 Per: S.S GARG The present appeal is directed against the impugned order dated 22.02.2017 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has upheld the penalties imposed on the appellant. Briefly the facts of the present case are that the appellant is engaged in the manufacture of Rubber Products and also doing job work of mixing of Rubber Compound on job work basis for the other manufacturers. The loading and unloading charges to the loading personnel were being given by the appellant and recover the same from the principal manufacturers. Also, they were collecting weighing charges from Truck owners who weigh their trucks and consignments on the weighing machine owned and operated by the appellant. During the audit of the records of the appellant, it was noticed that during the period 2009-10 to 2012-13, the appellant has not paid service tax on the loading and unloading charges received under Cargo Handling Service and on weighing charges under Business support service, and on the legal charges paid by them under reverse charge mechanism. Accordingly, a show-cause notice was issued to the appellant for the period from 2009-10 to 2012-13 and the same was adjudicated vide Order-in-Original No. 03/2015 ST dated 19.01.2015. Since the appellant has been continuing the non-payment on similar service rendered by them during the period 2013-14, a periodical show-cause notice No. 31/2015/ST dated 16.04.2015 has been issued to them. The original adjudicating authority has confirmed the demand of Rs. 38,212/- (Rupees Thirty Eight Thousand Two Hundred and Twelve only) and Rs. 7,080/- (Rupees Seven Thousand and Eighty only) and appropriated the amount of Rs. 6,244/- (Rupees Six Thousand Two Hundred and Forty Four only) paid under Business Support Service in respect of the weighment charges and Rs. 7,292/- (Rupees Seven Thousand Two Hundred and Ninety Two only) paid under legal Consultancy Service vide Order-in-Original No. 35/2015/ST dated 21.10.2015 along with interest under Section 75 and penalty of Rs. 4,000/- (Rupees Four Thousand only) under Section 76, Rs. 10,000/- (Rupees Ten Thousand only) or Rs. 200/- (Rupees Two Hundred only) per day during which the failure regarding the non-registration continued, whichever is higher, Rs. 1,000/- (Rupees One Thousand only) as penalty for non-registration under Section 77(1) (a) and Rs. 3,000/- (Rupees Three Thousand only) under Section 77(2) of the Finance Act, 1994. Aggrieved by the said order, the appellant filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals) upheld the penalties imposed on the appellant against which the present appeal has been filed.
2. Heard both the parties and perused the records.
3. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering the facts and the evidence on record. He further submitted that in an identical case of the appellant, this Tribunal vide its order dated 01.08.2017 disposed of Appeal No. ST/20813/2017 whereby the appellant was given benefit of Section 80 of the Finance Act 1994 and set aside the penalty imposed under Section 77 of the Finance Act 1994. He further submitted that the penalty under Section 76 should also be dropped because the appellant has paid the service tax along with interest.
4. On the other hand the learned AR submitted that there is no infirmity in the impugned order which categorically states that the appellant has paid the dues only after a lapse of longer period and therefore the Commissioner (Appeals) has upheld the penalties under Section 76 imposed by the original authority.
5. After considering the submissions of both the parties, I find that as far as penalty under Section 77 is concerned, since the Tribunal in the appellants own case has already dropped the penalty under Section 77 by giving the benefit under Section 80 of the Finance Act, by following the ratio of the said decision, I also drop the penalty under Section 77. Whereas penalty under Section 76 is concerned, since the appellant has paid the dues after a lapse of longer period, therefore he is liable to pay the penalty under Section 76 as held by the original authority. Therefore, I upheld the impugned order to the extent of imposing the penalty under Section 76 but dropped the penalty under Section 77. Appeal is partly allowed.
(Operative portion of the Order was pronounced in Open Court on 22/11/2017) (S.S GARG) JUDICIAL MEMBER iss...