Custom, Excise & Service Tax Tribunal
M/S Agni Infrastructure & Shelters Pvt. ... vs Cce, Nagpur on 4 August, 2014
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. II APPLICATION NO. ST/S/99804/13 IN APPEAL NO. ST/89756/13 (Arising out of Order-in-Appeal No. NGP/EXCUS/000/APPL/839/13-14 dated 16.09.2013 passed by the Commissioner of Central Excise & Customs (Appeals), Nagpur.) For approval and signature: Honble Shri Anil Choudhary, Member (Judicial) =====================================================
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy : Seen
of the order?
4. Whether order is to be circulated to the Departmental : Yes
authorities?
=====================================================
M/s Agni Infrastructure & Shelters Pvt. Ltd.
: Appellant
Versus
CCE, Nagpur
: Respondent
Appearance
Shri Vinay G. Chouriya, Advocate
: For Appellant
Shri N.N. Prabhudesai, Supdt. (A.R.)
: For Respondent
CORAM:
HONBLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL)
Date of Hearing : 04.08.2014 Date of Decision: 04.08.2014
ORDER NO.......................................................
Per: Anil Choudhary:
The appellant is engaged in civil construction and registered with Service Tax Department under the category of construction service in respect of commercial or industrial building & civil structure works since 2003. A show-cause notice dated 20.12.2011 was issued to the appellant alleging that it has not paid the Service Tax on expenses incurred towards the transportation of goods, hence appellant is liable to pay the Service Tax under the head Transport of Goods by Road for the extended period of limitation (GTA services) for the period December, 2006 to September, 2011. Accordingly, it was proposed to demand Service Tax of Rs. 2,55,669/- alongwith interest and penalties under Section 76, 77 & 78 of the Finance Act, 1994, invoking extended period of limitation. The said show-cause notice was contested by the appellant and was adjudicated vide the Order-in-Original dated 15.04.2013. In the adjudication, proposed demand was confirmed with interest and the same has been appropriated from the pre-deposit amounts. Further penalty amount of Rs. 200/- per day was imposed on appellant for the period December, 2006 to 10.05.2008 under Section 76 of the Finance Act, 1994, and further penalty amount of Rs. 5000/- was imposed under Section 77. Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals), who vide impugned order dated 16.09.2013 rejected the appeal and upheld the Order-in-Original. Being aggrieved the appellant have preferred appeal before this Tribunal.
2. The learned Counsel for the appellant has pointed out that the appellant was not aware of his obligation for paying the Service Tax for the payments under the category of GTA service under the Finance Act, 1994. The appellant have paid Service Tax on the construction services for which registration was taken and also returns filed regularly. Further the amount of tax has been paid for receipt of GTA services under the Reverse Charge Mechanism, which being on input service(s) was entitled to take CENVAT credit. Under the circumstances no deliberate defiance of the law is there in none payment for GTA service. Further, the appellant states that they have paid the Service Tax alongwith interest as well, as it have deposited Rs. 1,51,012/- on 01.12.2011 prior to issue of show-cause notice. It had applied for amendment of Registration certificate (for inclusion of GTA service) on 29.11.2011. Further challans could not be deposited as the amendment was in process, as suggested by the Superintendent of Service Tax, as there was a chance of changing the Service Tax No. Further the amendment procedure was completed and the Department has issued changed registration number on 21.12.2011and he has deposited the tax on the very next day on 22.12.2011. In such circumstances, issue of a show-cause notice by the Revenue on 20.12.2011 (prior to issue of amended Registration certificate) was premature. The appellant further prays for grant of stay and or allowing the appeal under the facts and circumstances of the case.
3. The learned Superintended (A.R.) appearing for the Revenue relies on the impugned order and further states that only on being pointed out by the Revenue, appellant has paid the tax with interest. On a query from the Bench why the department issued show-cause notice on 20.12.2011 during the pendency of the amendment application, the Revenue could not give any satisfactory answer. The Revenue further pleads for putting the appellant to terms.
4. Having considered the rival contentions, I find that neither there is any allegation of deliberate contravention of Act and Rules in the show-cause notice nor any finding for the same in the Order-in-Original. Further the amount of Service Tax paid for GTA service availed, would have been available to the appellant as input tax credit and that there was no reason for the appellant to evade payment of Service Tax under GTA service. It is further seen that the appellant have deposited the tax under the other head (construction service) of the Finance Act, 1994. Further, I find that conduct of the Revenue in issuing of show-cause notice pending the amendment was uncalled for. Further the appellant has paid the tax immediately after the completion of amendment, on the very next day. So the appellants conduct was good. In the facts and circumstances of the case, I take up the appeal for final disposal. I hold that in facts and circumstances the invocation of extended period is not proper. I also hold that the issue of show-cause notice is premature. I set aside the impugned order and allow the appeal. The stay application also stands disposed of.
(Dictated and pronounced in open Court) (Anil Choudhary) Member (Judicial) Sp 4