Custom, Excise & Service Tax Tribunal
M/S. Rajasthan Renewable Energy vs C.C.E., Jaipur-I on 24 October, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST BLOCK NO.2, R.K. PURAM, NEW DELHI 110 066. Date of Hearing/Order : 24.10.2016 For Approval &Signature : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Mr. Ashok K Arya, 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? No 3. Whether Lordships wish to see the fair copy of the order? Seen 4. Whether order is to be circulated to the Department Authorities? Yes Appeal No.ST/1601/2011-CU[DB] [Arising out of Order-in-Original No.36/2011 (ST)-Commissioner, dated 01.08.2011 passed by C.C.E., Jaipur-I] M/s. Rajasthan Renewable Energy Corporation Ltd. Appellant Vs. C.C.E., Jaipur-I Respondent
Appearance Mr. Jatin Mahajan, Advocate - For Appellant Ms. Neha Garg, DR - For Respondent CORAM: Honble Ms. Archana Wadhwa, Member (Judicial) Honble Mr. Ashok K Arya, Member (Technical) Final Order No.54646/2016, dated 24.10.2016 Per Ms. Archana Wadhwa :
The demand in the present case stands raised and confirmed under the category of Business Auxiliary Service (BAS) for the period October, 2004 to March, 2009 by way of Show Cause Noticed dated 22.03.2010.
2. Ld. Advocate appearing for the appellant submits that though they have good case on merits, he is assailing the impugned order on the basis of limitation. He also draws our attention that the adjudicating authority has dropped the penalty by invoking the Section 80 of the Finance Act, 1994. As such, in terms of various decisions of Tribunal, the extended period would not be invokable, where Revenue is of the view that the penalty under Section 80 of the Act should not be imposed.
3. After hearing the ld. Departmental Representative, we find that admittedly Section 80 of the Act is invoked by the adjudicating authority and penal proposed stands dropped by observing as under:-
23. The noticees have argued that they were under bonafide belief that they were not liable to service tax therefore its a fit case waiver of penalty in terms of section 80 of the Act. The issue of suppression of fact and invokability of section proviso to section 73 has already been discussed in preceding para and it has been held that the proviso is rightly invocable. However considering the fact that the noticees are a state government undertaking and the benefit of evasion of service tax would not go to any private person of company and also that they have already deposited Rs.68 lakh voluntarily, I am inclined to accept the plea of the noticees that there was reasonable cause for failure to pay tax. It has been held in several cases that even if the proviso to section 73 for extending the period of demand on account of suppression of fact etc is invoked the waiver under section 80 can still be given. I therefore extend the benefit of section 80 of the Finance Act, 1994 and waive penalty under Section 76, 77 and 78 of the Act.
4. Tribunal in its number of cases observed that where the penalty under Section 80 of the Act has not been imposed by extending the bona fide belief on the part of the appellant, the extended period would not be invokable in as much as the same ingredients are required for invocation of extended period of limitation. Such references can be made in the case of Sankhla Udyog Vs. CCEST, Jaipur [2015 (38) STR 62 (Tri,-Del.)] as also to the decision in the case of BSNL Vs. CCE, Ahmedabad [2009 (14) STR 359 (Tri.-Ahmd)].
5. We also further note that the appellant is a public sector under taking, being a State Govt. enterprise, in such a case allegation of wilful mis-statement, suppression of facts or deliberate contravention of Rule with an intention to evade the duty payment cannot be made. Tribunal has observed the same in the case of CCE, Allahabad Vs. Bharat Yantra Nigam Ltd. [2014 (36) STR 554 (Tri.-Del.)].
6. For the reasons recorded above, we hold that the extended period is not available to the Revenue. However, a part of the demand falls within the limited period, which would be re-quantified by the adjudicating authority.
7. The appeal is disposed of in the above manner.
(Archana Wadhwa) Member (Judicial) (Ashok K Arya) Member (Technical) SSK -2-