Custom, Excise & Service Tax Tribunal
M/S. Perfect Securities Services vs Commissioner Of Service Tax, Ahmedabad on 4 December, 2015
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad Appeal No. : ST/187/2007 (Arising out of OIA-65/2007/STC/RAJU/COMMR-A-IV/AHD dated 24.08.2007, passed by Commissioner (Appeals) Central Excise, & S.T., Ahmedabad) M/s. Perfect Securities Services : Appellant (s) VERSUS Commissioner of Service Tax, Ahmedabad : Respondent (s)
Represented by :
For Appellant (s) : Shri N.K. Oza, Advocate For Respondent (s) : Shri T.K. Sikdar, Authorised Representative For approval and signature :
Mr. P.M. Saleem, Honble Member (Technical) 1 Whether Press Reporter 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 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 CORAM :
Mr. P.M. Saleem, Honble Member (Technical) Date of Hearing / Decision : 04.12.2015 ORDER No. A/11771/2015 Dated 04.12.2015 Per : Mr. P.M. Saleem The appellant herein M/s. Perfect Securities Services is a registered service provider for the services under the category of Security Services. During audit by the audit party of the department, it was found that appellant had not filed ST-3 returns for the period from October 2004 to March 2005 and April 2005 to September 2005 and they have also not paid the service tax dues pertaining to the said period. On the same being pointed out by the audit party, the appellants paid the service tax of Rs. 22,87,217/- and interest amounting to Rs. 43,350/- on different dates. A show cause notice dated 16.02.2006 was issued to the appellant and was adjudicated by the Additional Commissioner. The original adjudicating authority confirmed the demand of Rs. 22,22,355/- under Section 73(i) with direction to adjust the payment of tax made by them and ordered to recover the interest on delayed payment of service tax under Section 75 of the Finance Act, 1994. He also imposed penalties under Sections 76, 77 and 78 of the Finance Act, 1994. The appellants filed an appeal with the Commissioner (Appeals). The Commissioner (Appeals) vide impugned Order-in-Appeal confirmed the order of the original adjudicating authority. Aggrieved by the same, the appellant is before us.
2. Heard both sides. The learned counsel for the appellant submits that they have paid almost 99% of the service tax dues before the issuance of show cause notice on 16.02.2006, and remaining service tax amount of Rs. 2,60,106/- + Education Cess of Rs. 5,203/- were subsequently paid by the appellant on 22.03.2006. The learned counsel submits that this short payment was due to calculation error, otherwise they would have paid the said amount also before issue of the show cause notice as they had not contested the service tax liability and had shown their willingness to pay the same immediately. He therefore, argues that the penalties imposed on the appellants should be set-aside. He relied upon the decisions of the Tribunal in the case of Akbar Travels of India vs. CCE, Trivandrum 2008 (07) LCX0526, and Abyss (The Hutch Shop) vs. Commissioner of Service Tax, Ahmedabad 2013 (08) LCX0244.
3. On the other hand, the learned Authorised Representative for Revenue submits that the appellants were fully aware that they had to file ST-3 returns and to pay service tax on due dates which they have undisputedly failed to do. Hence, he argued that the penalties imposed on the appellants are justified.
4. On careful consideration of arguments of both sides and perusal of the records, we observe that there is no dispute regarding tax liability, which is upheld. The appellant had paid almost the entire amount of service tax due, except a small portion before issuance of show cause notice. It is also observed that the remaining amount was paid immediately after the adjudication order. We find force in the arguments of the learned counsel that the penalty equivalent to service tax, under Section 78 of the Finance Act, 1994 is not warranted in view of the facts of the case. Therefore, penalty imposed under Section 78 of the Finance Act, 1994 is set-aside. However, we find force in the arguments of the learned Authorised Representative that the appellants had not filed ST-3 returns and had not paid the service tax dues though they were aware of their liability. Hence, we uphold the penalties imposed under Section 76 and 77 by the adjudicating authority. As the amount of penalty is not quantified in the order-in-original, we direct the adjudicating authority to quantify the same in accordance with the impugned order-in-original.
5. The impugned order-in-original and Order-in-Appeal are modified to the above extent.
6. Appeal is allowed on the above terms.
(Order dictated and pronounced in the open Court) (P.M. Saleem) Member (Technical) .KL 4