Custom, Excise & Service Tax Tribunal
M/S.Cauvery Stones Impex Private ... vs Commissioner Of Central Excise, Salem on 13 July, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No.ST/94/2010
[Arising out of Order-in-Appeal No.171/2009-ST(SLM) dated 17.11.2009 passed by the Commissioner of Central Excise (Appeals), Salem ]
M/s.Cauvery Stones Impex Private Limited
Appellants
Versus
Commissioner of Central Excise, Salem
Respondent
Appearance:
Shri K.S. Venkatagiri, Adv. Shri A.B. Niranjan Babu, SDR For the Appellants For the Respondent CORAM:
Honble Dr. Chittaranjan Satapathy, Technical Member Date of hearing : 13.07.2010 Date of decision : 13.07.2010 Final Order No.____________ Heard both sides.
2. The Commissioner (Appeals) has set aside the penalty imposed on the appellants under Section 76 of the Finance Act, 1994 and has upheld the penalty imposed under Section 78 of the Act. Both sides agree that this is a case where the appellants have paid service tax of appropriate value but only after a delay. I find that Section 78 applies where there is fraud, collusion, mis-statement or suppression etc., and the heading for the said section reads as penalty for suppressing value of taxable services. Delayed payment of service tax, therefore, does not come under the ambit of Section 78. Hence the penalty upheld under Section 78 by the lower appellate authority requires to be set aside. I order accordingly and allow the appeal. Before parting with the case, I note that Section 76 would have been more appropriate for imposition of penalty in this case which covers cases of failure to pay service tax and, therefore, it would also cover failure to pay service tax in time. However, the lower appellate authority has set aside the penalty imposed under Section 76 and the department has not come in appeal against this order. (Dictated and pronounced in open court) (DR. CHITTARANJAN SATAPATHY) TECHNICAL MEMBER ksr 13--07-2010 ??
??
??
??
2