Custom, Excise & Service Tax Tribunal
Shalimar Cable Network vs Commissioner Of Central Excise on 26 September, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Service Tax Appeal No. 413 of 2010
[Arising out of Order-In-Appeal No. 226 (DK)ST/JPR-I/2009 dated 22.12.2009 passed by Commissioner (Appeals), Customs & Central Excise, Jaipur]
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble Mr. V Padmanabhan, 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?
No
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?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
Shalimar Cable Network Appellant
Vs.
Commissioner of Central Excise Respondent
Jaipur Appearance:
Shri Saurabh Garg, CA for the Appellants Shri Sanjay Jain, AR for the Respondent CORAM:
Hon'ble Ms Archana Wadhwa, Member (Judicial) Hon'ble Mr. V Padmanabhan, Member (Technical) Date of Hearing/ Decision: 26.09.2016 FINAL ORDER NO . 53969 /2016 Per Archana Wadhwa (for the Bench):
After hearing the learned DR appearing for the Revenue, we find that the challenge in the present appeal is only to penalty imposed upon the appellant under section 76, 77 and 78 of the Finance Act, 1994. The appellant is a cable operator and was duly registered with the Revenue for the said purpose. The service tax liability was being discharged by him only on commission so received, without including the gross amount received from subscriber and paid to MSO. Demand of Service Tax of Rs.2,48,275/- stand confirmed against him along with interest which is not being contested. It is also seen that the appellant have been given benefit of Cenvat Credit of service tax paid on services in respect of service received from MSO. The lower authorities have not set aside the penalty on the ground that there was suppression on the part of the assessee.
2. On going through the impugned order, we find that the appellant was admittedly only showing the commission amount as the value of services, which was being duly reflected by him in the returns so filed with the Revenue. No objection was ever raised by the Revenue. Infact, we find that the adoption of reflecting commission only in the ST-3 returns was a pattern adopted by most of cable operator service providers. In the absence of any positive evidence to reflect malafide on the part of assessee, we are of the view that imposition of penalty may not be justifiable. We accordingly, set aside the same and allow the appeal.
3. Appeal is allowed in the above terms.
(dictated and pronounced in the open court )
( Archana Wadhwa ) Member(Judicial)
( V Padmanabhan)
Member(Technical)
ss
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