Custom, Excise & Service Tax Tribunal
M/S. Mehta & Associates Fire Protection ... vs Commissioner Of Service Tax, Ahmedabad on 22 May, 2015
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad Appeal No. : ST/12723/2014 (Arising out of OIA-AHM-SVTAX-000-APP-018-14-15 dated 22.04.2014, Passed by Commissioner (Appeals) Central Excise, & S.T., Ahmedabad) M/s. Mehta & Associates Fire Protection Systems Pvt. Ltd : Appellant (s) VERSUS Commissioner of Service Tax, Ahmedabad : Respondent (s)
Represented by :
For Appellant (s) : Shri S.J. Vyas, Advocate For Respondent (s) : Shri S.K. Shukla, Authorised Representative For approval and signature :
Mr. H.K. Thakur, Honble Member (Technical) 1 Whether Press Reporter 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes CORAM :
Mr. H.K. Thakur, Honble Member (Technical) Date of Hearing / Decision : 22.05.2015 ORDER No. A/10637 / 2015 Dated 22.05.2015 Per : Mr. H.K. Thakur;
This appeal has been filed by the appellant with respect to OIA No. OIA-AHM-SVTAX-000-APP-018-14-15 dated 22.04.2014 passed by passed by Commissioner (Appeals), Ahmedabad upholding OIO No. 41/STC-AHD /ADC (AS)/2012-13 dated 24.01.2013.
2. Shri S.J. Vyas, (Advocate) appearing on behalf of the appellant argued that his client was registered with the Service Tax authorities for providing services of Erection, Commissioning or Installation and Management, Maintenance or Repair Services. That a demand of Rs. 7,19,763/- for the period from 01.10.2006 to March 2011 was issued and confirmed against the appellant. Learned Advocate fairly submitted that they are not contesting the leviability of service tax on merits. It was his case that the entire service tax of Rs. 7,19,763/- alongwith interest of Rs. 3,14,851/- and 25% penalty (Rs. 1,93,555/-) has been paid. He made the Bench go through Para 29 and 36.9 of the OIO dated 24.1.2013 passed by the Adjudicating authority to claim that Rs. 1,04,659/- mentioned in the order portion has been incorrectly appropriated when an amount of Rs. 1,93,555/- was paid towards 25% penalty payment. That it has been wrongly mentioned in Para 29 of the OIO dated 24.01.2013 that penalties of Rs. 1,93,555/- and Rs. 88,896/- pertain to the period prior to October 2006. Learned Advocate also made the Bench go through the chart made in the statements of fact, in appeal filed by the appellant to argue that no service tax or penalty was payable before October 2006. He also argued that Section 76 penalty is not imposable when Section 78 penalty paid as per the law laid down by Hon'ble Gujarat High Court.
3. Shri S.K. Shukla (AR) appearing on behalf of the Revenue defended the orders passed by the lower authorities.
4. Heard both sides and perused the case records. Appellant has not contested the issue of liability to pay service tax before the first appellate authority. The case of the appellant is that the entire service tax of Rs. 7,19,763/- was paid alongwith interest and 25% penalty. It was the case of the advocate appearing on behalf of the appellant that the payment particulars have been incorrectly stated in Para 29 and 36.9 of the Adjudication order and entire penalty of 25% payable under Section 78 of the Finance Act, 1994 stand paid and thus no penalty is required to be paid under Section 76 of the Finance Act, 1994. It is observed from the order dated 22.4.2014 passed by the first Appellate authority that he has not deliberated on the issue of reconciliation of payment particulars and the amounts paid by the appellant. For the purpose of reconciliation of the payments made vis-`-vis duty liability of the appellant, the matter is required to be remanded back to the original adjudicating authority. This case is thus remanded back to the adjudicating authority to decide the quantification of duty payments made and Section 78 penalty paid by the appellant, after giving an opportunity of personal hearing to the appellant. The issue of imposition of Section 76 penalty, whether or not imposable, when Section 78 penalty is paid should also be decided by the first appellate authority. Appellant should bring to the notice of the adjudicating authority the judgments of Higher Courts on this issue.
5. Appeal filed by the appellant is allowed by way of remand to the Adjudicating authority.
(Order dictated and pronounced in the Court) (H.K. Thakur) Member (Technical) .KL 4