Custom, Excise & Service Tax Tribunal
Veriton Software Solution Pvt Ltd vs Commissioner Of Central Excise, ... on 20 June, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No . 21341 / 2014 Application(s) Involved: ST/Stay/25136/2013 in ST/25166/2013-DB Appeal(s) Involved: ST/25166/2013-DB [Arising out of OIA No.650-2012 dated 22/11/2012 passed by Commissioner of Central Excise (Appeals), Mangalore] Veriton Software Solution Pvt Ltd No.267, 1floor, 16th Main, 5th Cross, Saraswathipuram, Mysore 570009 MYSORE - 570009 KARNATAKA Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax MYSORE NULL S1-S2...VINAYA MARGA, SIDDHARTHA NAGAR, MYSORE - 570011 KARNATAKA Respondent(s)
Appearance:
Shri G.H.PRADYUMNA ADV SRI VINAYAK ASSOCIATES, NO.244, 1ST CROSS, BANASHANAKRI 3RD STAGE, BANGALORE-560 085 For the Appellant Shri N. Jagdish, Superintendent(AR) For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 20/06/2014 Date of Decision: 20/06/2014 Order Per : S.K. MOHANTY This appeal along with stay application has been filed by the appellant against the impugned order dated 22/11/2012 passed by the Commissioner (Appeals), Mangalore.
2. After hearing both sides for some time, we find that the appeal itself can be disposed of at this stage. Accordingly, after waiving the requirement of pre-deposit, we take up the appeal for final hearing.
3. The brief facts of the case are that during the disputed period the appellant had provided various taxable services and the service tax attributable to the said services have not been discharged, which has resulted in confirmation of the service tax demand along with interest and imposition of penalty under Section 78 of the Finance Act, 1994 by the authorities below.
4. The learned advocate appearing for the appellant submitted that the appellant is not contesting the service tax liability and had paid the entire amount along with interest before issuance of the show-cause notice. However, the appellant is contesting the penalty imposed in view of Section 73(3) of the Act, which mandates that where the entire service tax liability along with interest has been paid before initiation of show-cause proceedings, the matter has to be closed for all purposes and show-cause notice cannot be issued. The learned advocate further submitted that no case of suppression of facts has been made out either in the adjudication order or in the impugned order to justify imposition of penalty. Finally, the learned advocate pleaded for extending the benefit of Section 80 of the Act for non-imposition of penalty.
5. We have heard the learned counsel for the parties and perused the records. It is an admitted fact that the entire service tax liability attributable to the taxable services provided by the appellant has been paid along with interest before issuance of show-cause notice. Sub-section (3) of Section 73 mandates that on payment of the amount of service tax on the basis of own ascertainment by the service provider or on the basis of tax payable as ascertained by the Central Excise officer, no show-cause notice shall be served on the service provider in respect of the amounts so paid. We find that the authorities below have accepted the fact regarding payment of tax along with interest by the appellant and over and above such payment nothing further is payable, representing the service tax or interest thereon. We find that no iota of evidence has been brought on record to prove that the appellant had the intention to evade payment of service tax. There-fore, we are of the considered view that the adjudication proceedings initiated for imposition of penalty alone is not in conformity with the provisions of Section 73(3) of the Finance Act, 1994. Further, in absence of any specific findings in the impugned order as regards the involvement of the appellant in fraudulent activities in defrauding the Government revenue, we are of the considered view that a good ground is made out for waiving the penalty amount under Section 80 of the Finance Act, 1994.
6. Accordingly, we allow the appeal by setting-aside the impugned order. Stay petition also gets disposed of.
(Operative portion of the order pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER Raja.
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