Custom, Excise & Service Tax Tribunal
M/S. Desert Inn Limited vs Cce, Jaipur-I on 6 September, 2012
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066 COURT NO. II ST/Stay/3123 to 3125/2012 in & Service Tax Appeal Nos. 2402 to 2404/2012 [Both arising out of Order-in-Appeal No. 79-81(AKJ)ST/JPR-I/2012 dated 30.4.2012 passed by the Commissioner (Appeals) Central Excise & Customs, Jaipur-I] Date of Hearing/decision: 6th September, 2012 M/s. Desert Inn Limited Appellant Vs. CCE, Jaipur-I Respondent
Present for the Assessee : Shri Rahul Lakhwani, C.A. Present for the Respondent : Shri V.P. Batra, A.R. Coram: Honble Shri D.N. Panda, Judicial Member;
Honble Shri Mathew John, Technical Member FINAL ORDER NO. ________________ Per D.N. Panda:
It is submitted on behalf of the appellant that leviability of service tax in respect of Car parking service provided while providing Mandap Keeper service was subject matter of dispute before the Tribunal. Such a dispute has been finally decided in respect of the same appellant in service tax appeal NO. 689/2007 vide Final Order No. ST/117/2011 dated 29.3.2011 holding that Car parking charges shall be liable to service tax under the category of Mandap Keeper service.
2. In view of the aforesaid decision, similar such dispute being involved in present 3 appeals before us which are registered as ST/2402 to 2404/2012, we have no different view, following judicial discipline and Rule of consistency. Accordingly, service tax demand on the above service is confirmed and appeal on this count is dismissed except cum tax benefit, if any available except cum tax benefit, if any, available.
3. It was explained to us that in appeal No. 2402/2012 tax and interest have been paid as well as penalty to the extent of 25% of tax demand has also been paid. It is prayer of the appellant that there should not be penalty under Section 77 & 76 of Finance Act, 1994. We do not find any reason to waive penalty under Section 77 to prevent non-compliance to law. So far as penalty under Section 76 is concerned since the appellant has also discharged the penalty under Section 78 to the extent indicated above there shall not be further penalty under Section 76 of Finance Act, 1994. Further, cum tax benefit, if any, may be considered. We notice that same is the position in appeal No. 2404/2012. This appeal is also partly allowed waiving penalty under section 76 of Finance Act, 1994.
4. So far as appeal No. 2403/2012 is concerned, in view of decision made above and also considering that the option to pay 25% of penalty amount having already been given by learned Adjudicating Authority, there is no further scope to extend the same benefit once the appellant failed to exercise such option. Accordingly that appeal is partly allowed by waiving penalty under section 76 of the Finance Act, 1994.
5. In all the three appeals another dispute arose by the appellant is whether it is entitled to cum-tax benefit. This being a common question it is left to the Adjudicating authority to examine relevant invoices to find out whether there was cum-tax invoices issued while receiving consideration against taxable service provided. If that is apparent, he should not hesitate to grant appropriate relief in accordance with law in all these three appeals. Only to this extent in all three appeals re-computation of liability examining quantum of tax benefit is desirable and quantum of penalty payable under section 78 is redeterminable.
6. It is needless to mention that appellant shall get fair opportunity of hearing before Adjudicating Authority to satisfy the cum-tax benefit plea made before us.
7. In the result, all the three stay applications are disposed and appeals are partly allowed to the extent indicated above.
(Dictated & pronounced in the Open Court) (D.N. PANDA) JUDICIAL MEMBER (MATHEW JOHN) TECHNICAL MEMBER RK 3 ST/S/3123-3125/12 in & ST/2402-2404/12