Custom, Excise & Service Tax Tribunal
M/S. Sharvin vs Cce, Bhopal on 20 June, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO. 2, R.K. PURAM, NEW DELHI COURT II SERVICE TAX APPEAL NO. 489 OF 2006 [Arising out of Order-in-Appeal No. 75/ST/Appl/BPL dated 21.7.2006 passed by the Commissioner (Appeals), Central Excise & Service Tax, Bhopal] For approval and signature: Honble Mr. S.S. Kang, Vice President, Honble Mr. Rakesh Kumar, Member (Technical) 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 Departmental authorities? M/s. SHARVIN Appellants Vs. CCE, Bhopal Respondent
Appearance:
Shri P.C. Kashiv, Consultant for the appellants, Shri R.K. Verma, JDR, Departmental Representative, for the respondent Coram:
Honble Mr. S.S. Kang, Vice President, Honble Mr. Rakesh Kumar, Member (Technical) Date of Hearing: 20th June, 2008 FINAL ORDER NO._________________ dated __________ Per S.S. Kang:
Heard both sides. The appellants filed this appeal challenging confirmation of demand of service tax and imposition of penalty.
2. During the arguments the appellants fairly conceded demand of service tax. The appellants are only challenging the penalty imposed under section 76, 77 & 78 of the Finance Act on the ground that service tax on out-door catering was levied w.e.f. 10.9.2004 to 15.5.2005 and they were under the bona-fide belief that as the place to provide eatables is provided by the manufacturer they are not providing service of catering. Contention is that the appellants were under bona fide belief that the factory canteen do not fall under the taxable category of outdoor caterer.
3. In these circumstances contention of the appellants is Section 80 of the Finance Act provided that notwithstanding any point in the provisions of Section 76 and 77 or Section 78, no penalty shall be imposable on the assessee for any failure referred to any other provision if the assessee proves that there was reasonable cause for the said failure.
4. Contention of the Revenue is that the appellants had not registered with the revenue authorities in spite of the fact that service tax was leviable on outdoor catering and during the survey it is noticed that the appellants are covered under service tax, therefore, they are liable to penalty.
5. We find that the appellants are contesting imposition of penalty. Service tax in respect of outdoor catering was levied w.e.f. 1-.9.2004 and the period in dispute is initial period and as per the appellants as the place for canteen is provided by the service recipient, therefore, they were under bona fide belief that they were not providing outdoor catering service at a place other than their own. We find that the appellants have sufficient cause for waiver of penalty. Accordingly, penalty is set aside and the impugned order is modified to this extent. Appeal is disposed of in above terms.
(Dictated & pronounced in the Open Court.) (S.S. KANG) VICE PRESIDENT (RAKESH KUMAR) MEMBER (TECHNICAL) Dated 25th June, 2008 RK