Custom, Excise & Service Tax Tribunal
The Commissioner Of Customs, Central ... vs M/S. Ots Advertising Pvt. Ltd on 15 March, 2013
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench - Single Member Bench
Court - II
Date of Hearing: 15.03.2013
Date of decision: 15.03.2013
Service Tax Appeal No. 1612/2010
(Arising out of Order-in-Appeal No. 10/2010 (G) ST dated 21.04.2010 passed by the Commissioner of Central Excise and Customs, Guntur)
For approval and signature:
Honble Mr. B.S.V. Murthy, 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?
Yes
3. Whether their Lordship wish to see the fair copy of the Order?
Seen
4. Whether Order is to be circulated to the Departmental authorities?
Yes
The Commissioner of Customs, Central Excise & Service Tax
Guntur ..Appellant
Vs.
M/s. OTS Advertising Pvt. Ltd. Respondent
Appearance Mr R. Gurunathan, Additional Commissioner (AR) for the appellant Mr N.K. Bharath Kumar, CA for the respondent Coram:
Honble Mr. B.S.V. Murthy, Member (Technical) FINAL ORDER No. 25214/2013 Revenue is in appeal against the impugned order setting aside the penalty imposed under Section 76 of Finance Act 1994 on the appellant by the original adjudicating authority by relying upon the proviso to Section 73(3) of Finance Act 1994 and Circular issued by the Board vide F. No. 137/167/2006-CX-4 dated 03.10.2007.
2. Learned AR submits that the appellant has delayed payment of service tax on as many as 30 occasions over the period from 01.04.2003 to 31.12.2007. Therefore he is a habitual defaulter and hence the penalty under Section 76 imposed on the appellant should not have been set aside. He also relies upon the decisions of the Tribunal in the case of Inma International Security Academy Pvt. Ltd. [2006 (1) S.T.R. 289 (Tri.-Chennai)], Remac Marketing (P) Ltd. [2009 (13) S.T.R. 658 (Tri.-Kolkata)] and Jupiter Sea & Air Services [2006 (3) S.T.R. 704 (Tri.-Chennai)] to submit that in all these cases penalties under Section 76 imposed on the assessees were upheld.
3. Learned consultant for the respondents submits that the proviso to Section 73(3) does not differentiate between a habitual defaulter and non-habitual defaulter. What is required is payment of service tax which is upheld with interest before issue of show-cause notice and once this is done, the provisions in statute provided that no show-cause notice shall be issued. He also further submits that even in the circular issued by the Board it has not been stated that a different approach should be taken in respect of habitual defaulters. He also relies upon the decision of the Honble High Court of Karnataka in the case of Commissioner, LTU Vs. M/s. Adecco Flexione Workforce Solutions Ltd. reported in 2011-TIOL-635-HC-KAR-ST.
4. I have considered the submissions made by both the sides. According to proviso to sub-section 73(3) of Finance Act 1994 if an assessee pays service tax with interest on the basis of ascertainment of a Central Excise Officer or on his own ascertainment and inform the department of such payment, no show-cause notice shall be issued unless the short payment has occurred because of suppression, fraud, willful mis-statement etc. for which separate provisions are available. In this case even though there have been several occasions on which there was delay in payment of service tax, in all such cases, service tax was paid with interest and there is no dispute that payment was made before the issue of show-cause notice. Section 73(3) of Finance Act does not differentiate between a habitual defaulter and a non-habitual defaulter. Therefore the issue is squarely covered by the statutory provisions and hence the impugned order cannot be faulted. I have gone through the decisions relied upon by the learned Additional Commissioner (AR) and I find that in all those cases, the assessee/appellant had not at all relied upon the proviso to Section 73(3) of Finance Act 1994 to seek waiver of pre-deposit under Section 76 and therefore there is no discussion about applicability or non-applicability of statutory provisions under Section 73(3) of Finance Act 1994. Therefore none of these decisions help the case of the Revenue. As far as the decision cited by the learned CA for the respondent, I find that it is on the applicability of proviso to Section 73(3) of Finance Act 1994 and that is the only issue which is before me.
5. In view of the above discussion, I find no merit in the appeal filed by the Revenue and accordingly reject the same.
(Pronounced and dictated in open Court) (B.S.V. MURTHY) MEMBER (TECHNICAL) iss