Custom, Excise & Service Tax Tribunal
Cce, Noida vs M/S Software Technology Park Of India on 23 August, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing : 23.08.2013
Date of Decision : 23.08.2013
ST/98/2009
[Arising out of Order-in-Appeal No. 122/CE/APPL/Noida/2008 dated 23.08.2008 passed by the Commissioner (Appeals), Central Excise, Noida]
For Approval & Signature:
Honble Mr. Justice G. Raghuram, President
Honble Mr. Sahab Singh, 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 would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether their Whether their Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
CCE, Noida Appellant
Vs.
M/s Software Technology Park of India Respondent
Appearance:
Shri Amraish Jain, DR - for the Appellant
None - for the Respondent
Coram : Honble Mr. Justice G. Raghuram, President
Honble Mr. Sahab Singh, Member (Technical)
Final ORDER NO. 57437/2013
Per Sahab Singh :
This appeal is filed by Commissioner Central Excise, Noida against the Order-in-Appeal No. 122/CE/APPL/Noida/2008 dated 23.08.2008 passed by the Commissioner Central Excise, (Appeals) Noida].
2. Brief facts of the case are that M/s Software Technology Park of India (hereinafter referred to as Respondents) had provided leased circuits to M/s MTNL during the period 16.07.2001 to 31.12.2003. M/s MTNL are the internet service providers who further distribute the lines to their own subscribers. Respondents had also installed antenna for providing internet service and leased line service in the premises of clients and were collecting Installation Charges and were not paying service tax on the amount realized from M/s MTNL for the aforesaid services. Accordingly a Show Cause Notice was issued to the Respondents demanding service tax on the taxable lease circuit services and installation charges collected for installation of antenna. The Show Cause Notice was adjudicated by the Assistant Commissioner vide Order-in-Original 19 dated 31,12,2007 confirming the service tax amounting to Rs. 31,37,505/- along with interest after classifying the service of Leased Circuit under Section 65(60) and installation of the antenna under clause (39A) of Section 65 of the Finance Act, penalties under Section 76 and 78 were imposed on the Respondents. The Respondents filed an appeal before the Commissioner Central Excise, (Appeals), who vide impugned order has confirmed the service tax amount payable by the Respondents but Commissioner (Appeal) has reduced the penalty imposed under Section 76 and 78 from Rs. 200/- per day to 100 per day and from Rs. 31,37,505/- to Rs. 2,00,000/- respectively. Revenue has challenged the reduction in penalty by the Commissioner (Appeal) by filling the present appeal.
3. Heard Ld. Shri Amraish Jain on behalf of the Revenue as non-appeared for the respondents.
4. We find that only issue involved in the present issue is whether the Commissioner (Appeal) was right in reducing the penalty under Section 76 and 78 of the Finance Act. We find the Commissioner (Appeal) has held that the issue involved in the appeal is respect of interpretation in law in the initial period of levy of service tax under the internet service and he further held that the Respondent, being an autonomous society under the Department of Information Technology under Ministry of Communication & Information Technology, cannot be viewed as having any malafide intention to evade the service tax. We find that the Commissioner (Appeal) has examined the law, facts mentioned in the original order and held that there is reason to reduce the penalty under 76 and 78. We do not find any infirmity in the finding of Commissioner (Appeal) and we uphold the same with regard to reduction in penalty and reject the appeal filed by revenue.
5. Revenues Appeal is rejected.
(Justice G. Raghuram) President (Sahab Singh) Member (Technical) Neha 3