Custom, Excise & Service Tax Tribunal
Cst New Delhi vs M/S Sojith Corporation on 21 July, 2011
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Court No.III
ST/Appeal No.683/2007
(Arising out of order in original No.22/VKG/2007 dated 13.8.07 passed by the Commissioner of Service Tax, New Delhi)
Date of Hearing: 21.7.2011
For Approval and signature:
Honble Mr. Ashok Jindal, Member Judicial
Honble Mr.Mathew John, Technical Member
_________________________________________________
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 would be released under Rule 27 of
the 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?
4. Whether order is to be circulated to the
Department Authorities?
CST New Delhi Appellants
Vs
M/s Sojith Corporation Respondent
Appeared for the Appellant : Shri Sunil Kumar, SDR
Appeared for the Respondent: Shri Muthu Venkraman Advocate
Shri R. Satish Kumar, Advocate
Coram: Honble Shri Ashok Jindal, Member (Judicial)
Honble Shri Mathew John, Member (Technical)
ORDER
Per Ashok Jindal:
Revenue is in appeal against the impugned order for dropping the penalties under Section 78 of the Finance Act.1994. The learned DR submitted that as the respondent has already admitted their service tax liability of Rs. 1,75,80,272/-, therefore, the penalty under Section 78 of the Finance Act, 1994 is imposable on the respondent. To support his contention, he placed the decision of CCE Vs Krishna Poduval reported in 2006 (1) STR 185 (Ker).
2. On the other hand, Shri Muthu Venkatraman, learned Advocate for the respondents appeared and submitted that against the impugned order, the respondent has already filed an appeal before this Tribunal and this Tribunal has dropped the show cause notice on the round of limitation itself which is reported in 2009 (40) STR 642 (Trib.-Del). Therefore, the Departments appeal for imposing of penalty does not sustain in the light of the decision of this Tribunal. He also submitted that the Revenue has challenged the order of this Tribunal before the Honble Apex Court and the appeal has been admitted by the Honble Apex Court in Appeal No. 4814/2009. Therefore, the appeal is not maintainable.
3. Heard both sides.
4. As the whole demand has been set aside by this Tribunal by the decision cited wherein the respondents undertake not to take refund of the amount deposited by them, and the Tribunal has held that the whole demand is admitted by respondents, therefore, the penalty under Section 78 is not leviable on the respondents following the decision of respondents own case against the impugned order. We set aside the appeal file by the Revenue. Accordingly, the appeal is dismissed. Cross objection is disposed off accordingly.
(ASHOK JINDAL) Member(Judicial) (MATHEW JOHN) Member(Technical) MPS* 3