Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs M/S Honest Industrial Sentinels on 28 April, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT:
II
Appeal No.ST/02/2010 (Application No.ST/S/02/2010)
Arising out of: OIA No.268/2009(STC)/HKJ/Commr.(A)/Ahd, dt.7.10.09.
Passed by: Commissioner of Central Excise & Customs (Appeals), Ahmedabad
For approval and signature:
Honble Mr. B.S.V. Murthy, Member (Technical)
1. Whether Press Reporters may be allowed to see the No
Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen
the order?
4. Whether order is to be circulated to the Departmental Yes
authorities?
Appellant:
M/s Honest Industrial Sentinels.
Respondent:
CST Ahmedabad Represented by:
Shri A.V. Nair, Adv: for the Assessee; Shri Rajendra Nagar, SDR for the Revenue. CORAM:
MR. B.S.V. MURTHY, MEMBER (TECHNICAL) Date of Hearing/Decision:28.04.10 ORDER No. /WZB/AHD/2010 Per: Mr.B.S.V. Murthy:
The appellants are challenging imposition of penalties under Sections, 76, 77 & 78 of Finance Act, 1994, imposed on the ground that the appellants did not obtain the registration for providing security services and thereby evaded the service tax during the period from 1998 to 2002.
2. Since the issue involved is only penalties under various Sections of Finance Act, 1994, I allow waiver of pre-deposit and stay petition and take up the appeal itself for final decision.
3. Learned advocate on behalf of the appellant submitted that the appellant is a proprietary firm, providing security services and was not aware of service tax liability in 2002. As soon as he became aware of the liability, he applied for registration on 25.6.02. It is his submission that since the service tax registration was obtained voluntarily before any action is taken by the department, the appellant is eligible for waiver of penalties imposed under various Sections of Finance Act, 1994.
4. On the other hand, the learned SDR submitted that in the show cause notice, it has been mentioned that during the audit of another company, it was noticed that the present appellant was providing security service and thereafter the department has taken up the matter. He fairly admitted that there is no written evidence to show that the department has informed the appellant to obtain the service tax registration and discharge the service tax liability. The Commissioner (Appeals) also relied upon the fact that during audit of service receiver, department came to know that the appellant was providing security services and this audit was prior to the date on which the appellant obtained the registration. In the absence of any written evidence available with the Revenue to show that the appellant was made aware of the service tax liability prior to the date he applied for registration, I have no option but to accept the claim made by the appellant that the appellant voluntarily obtained the registration and also paid the service tax before issuance of show cause notice. In fact, the show cause notice was issued in August 2003 whereas the entire service tax has been paid with interest by the appellant in September 2002 itself. Further, it is also noticed that the appellant has paid penalty of Rs.500/- under Section 75A along with service tax and interest.
5. Taking note of the fact that the appellant is proprietary firm and the total amount liable to be paid is Rs.1,70,930/- for the period of more than 3 years and the appellants obtained the registration voluntarily and paid the service tax and interest without waiting for issuance of show cause notice and also has not contested the service tax liability, I consider that a lenient view is required to be taken in this case as per the provisions of Section 80 of Finance Act, 1994.
6. In view of the above discussion, the penalties imposed under Sections 76, 77 and 78 of Finance Act, 1994 are set aside and the appeal allowed.
(Dictated & Pronounced in Court) (B.S.V. Murthy) Member (Technical) cbb ??
??
??
??
3