Custom, Excise & Service Tax Tribunal
M/S Simplex Engg. & Foundry Works Pvt. ... vs Cce, Raipur on 4 April, 2013
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
West Block No.2, R. K. Puram, New Delhi.
Court No. 1
Date of hearing/decision: 04.04.2013
Honble Sh. Justice G. Raghuram, President
Honble Sh. Sahab Singh, Technical Member
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?
Service Tax Appeal No. 06 of 2009
(Arising out order-in-Appeal No.29-ST/RPR-II/2008 dated 29.09.2008 passed by the Commissioner (Appeals-II), Customs & Central Excise, Raipur).
M/s Simplex Engg. & Foundry Works Pvt. Ltd. Appellants
Vs.
CCE, Raipur Respondent
Appearance: Ms. Tuhina, Advocate for the appellants.
Shri M. S. Negi, DR for the Revenue.
Coram: Honble Mr. Justice G. Raghuram, President Honble Mr. Sahab Singh, Technical Member Final Order No. 55938 / 2013 dt. 04.04.2013 Per: Justice G. Raghuram:
We have heard Ms. Tuhina, ld. Counsel for the appellant and Sh. M. S. Negi, ld. DR for the respondent.
2. The appeal by the assessee is preferred against the order-in-appeal dated 29.09.2008 confirming the order-in-original dated 23.06.2008 passed by the adjudicating authority the Deputy Commissioner, Division-I, Bhilai whereby the demand of service tax of Rs. 3,51,122/-, education cess of Rs. 8,022/-, interest and penalty under section 75 of the Finance Act, 1994 and a penalty equivalent to the service tax liability under Section 78 of the Act were confirmed and penalty under section 76 was waived, under Section 80 of the Act. The process of recovery of service tax by Revenue was initiated against the appellant in respect of service of Goods Transport Agency by road on freight paid by the appellant. Enquiries initiated in the process revealed under-disclosure of service tax liability on GTA services. After a due process of notice and hearing the adjudication order was passed. The appellant preferred an appeal unsuccessfully, which was rejected by the Commissioner (Appeals). Accordingly the present appeal is filed.
3. Ld. Counsel for the appellant fairly states the position that on merits of the order of the adjudication, confirmed by the appellate order, no contest is available, since the appellant has failed to furnish any substantiating material to support its claim that the allegation of under-disclosure of the value was in respect of transactions pertaining to non taxable services. The single point urged by the ld. Counsel is that the adjudicating authority as well as appellate authority erred in failing to exercise discretion under the second proviso to section 78 of the Act, in the light of the decision of Delhi High Court in K.P. Pouches (P) Ltd. vs. Union of India reported in 2008 (228) ELT 31 (Del.) and the decision of this Tribunal in Sonam Clock Pvt. Ltd. vs. CCE, Rajkot reported in 2012 (278) ELT 263 (Tri. Ahmd.) (the latter decision having followed several decisions including the decision of the Delhi High Court in K.P. Pouches).
4. Shri M.S. Negi, ld. DR has placed for our consideration the recent decision of the High Court of Bombay in the case of CCE, Mumbai vs. Castrol India Ltd. reported in 2012 TIOL-464-HC-MUM-CX. In Castrol India Ltd. the Bombay High Court referred to several decisions including those of this Tribunal which followed the judgment of the Delhi High Court in K.P.Pouches (P) Ltd. Distinguishing the decision of Delhi High Court by placing reliance on the decision of the Supreme Court in Union of India vs. Dharmendra Textile Processors reported in 2008-TIOL-192-SC-CX-LB, the Bombay High Court held that once the conditions enumerated in Section 11AC and failure to remit the amount of duty under the first proviso and the amount of penalty determined under the second proviso to the said provision are established, the liability to remit 100% of the penalty is statutorily enjoined and no discretion inheres in any authority to avoid the legislative mandate as to the quantum of penalty.
5. In the light of the judgment of the High Court of Mumbai in Castrol India Limited the contention of the ld. Counsel does not commend acceptance by this Tribunal. The appeal is dismissed in the above circumstances, but without costs.
(Justice G. Raghuram) President (Sahab Singh) Technical Member Pant 4