Custom, Excise & Service Tax Tribunal
Cce, Visakhapatnam-Ii vs M/S. Tirupathi Fuels Pvt. Ltd on 16 June, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH AT HYDERABAD Bench SMB Court I Appeal No.ST/997/2011 (Arising out of Order-in-Appeal No.41/2010(V-II) ST dt. 29/12/2010 passed by CCE&C(Appeals), Visakhapatnam) For approval and signature: Honble Ms. Sulekha Beevi, C.S., Member(Judicial) 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 Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? CCE, Visakhapatnam-II ..Appellant(s) Vs. M/s. Tirupathi Fuels Pvt. Ltd. ..Respondent(s)
Appearance Shri S. Reddy, Assistant Commissioner(AR) for the appellant.
None for the respondent.
Coram:
Honble Ms. Sulekha Beevi, C.S., Member(Judicial) Date of Hearing:16/06/2016 Date of decision:16/06/2016 FINAL ORDER No._______________________ [Order per: Sulekha Beevi, C.S.] This is an appeal filed by the Revenue against the order passed by Commissioner(Appeals) by which the penalty imposed under Section 78 of the Finance Act, 1994 was set aside.
2. The facts lie in a narrow compass. The respondents who are engaged in import of coking coal and manufacture of low ash metallurgic coke are registered with Service Tax Department under the category of GTA services which became taxable w.e.f. 01/01/2005. It is the case of Department that respondent neither paid service tax nor filed ST-3 returns. The Department after verification of records was of the view that appellant has to pay Rs.40,39,751/- as service tax and interest thereon. The respondents paid the service tax along with interest. However, a show-cause notice was issued. The adjudicating authority confirmed the demand and appropriated the amount paid. The adjudicating authority imposed equal amount of penalty under Section 78 ibid.
3. The respondent filed appeal before the Commissioner(Appeals) challenging the imposition of penalty under Section 78 of Finance Act, 1994. In the impugned order, the Commissioner(Appeals) set aside the penalty. Hence the present appeal.
4. The learned AR Shri S. Reddy appearing for the Department vehemently contended that the Commissioner(Appeals) has erred in setting aside the penalty. The respondent had not filed periodical return and therefore are guilty of suppression of facts. That the show-cause notice was issued invoking extended period and therefore the mala fide intention having been proved, the respondent is liable to pay penalty.
5. None appeared for respondent, even after issuance of notice. The appeal was taken for disposal after hearing the argument of AR and perusal of records.
6. At the outset, it has to be stated that the respondents paid the entire arrears along with interest even before the issuance of show-cause notice. Section 73(3) provides that no show-cause notice shall be issued if the assessee deposits the tax along with interest. This is a fit case for applying the law laid in the said provision. In Sunitha Tools (P) Ltd. / Sunitha Die Parts (P) Ltd. Vs. CST, Mumbai [2014-TIOL-2094-CESTAT-MUMBAI], it was held that Section 73(3) makes it abundantly clear that once assessee discharges the service tax liability along with interest thereon, either on his own account or on pointing out by the Department, the proceedings abate and there is no need for issue of show-cause notice. The explanation makes it clear that once the payment is made, no penalty can be imposed. Applying the law as well as the dictum laid to the facts of the case, I am of the view that the conclusion arrived by the Commissioner(Appeals) does not call for any interference. The appeal is dismissed.
(Operative part of this order was pronounced in court on conclusion of the hearing) SULEKHA BEEVI C.S. MEMBER(JUDICIAL) Raja.
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