Bombay Stock Exchange Ltd vs Commissioner Of Service Tax, Mumbai

(Arising out of Order-in-Appeal No. SB(33) 33/STC/2010 dated 30-03-2010 passed by Commissioner of Central Excise (Appeals), Mumbai)

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) and Honble Mr. C.J. Mathew, Member (Technical)

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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 : No 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?

====================================================== Bombay Stock Exchange Ltd. Appellant Vs. Commissioner of Service Tax, Mumbai Respondent

Appearance: Shri M.P. Baxi, Advocate for Appellant Shri S.V. Nair, Supdt (AR), for Respondent

CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

Date of Hearing : 25/08/2015 Date of Decision : 25/08/2015

ORDER NO

Per: M.V. Ravindran

This appeal is directed against Order-in-Appeal No. SB (33) 33/STC/2010 dated 30-03-2010.

2. Heard both sides and perused the records.

3. The issue involved in this appeal is non-discharge of service tax for the period 01.04.2005 to 09.08.2005 under the category of Commercial Training and Coaching Services. The appellant was issued a show cause notice demanding service tax interest thereof and also for imposition of penalties. Adjudicating authority confirmed the demands raised along with interest and imposed penalties under section 76 and 77 of the Finance Act 1994 and dropped the proceeding for imposition of penalties under section 78 of the Finance Act 1994. Assessee appellant preferred an appeal against such an order. During the interregnum period, appellant assessee discharged the service tax liability and the interest thereof. Before the first appellate authority also, they contested the issue on merits and also for non imposition of penalties. First appellate authority after following the due process of law rejected the contentions raised by appellant as also the appeal.

4. Learned Counsel would submit that the appellant is only seeking setting aside of the penalties. It is his submission that the appellant was under bona-fide belief that service tax liability will not arise under the category of Commercial Training and Coaching Services. He would submit that bona-fide belief needs to be considered for setting aside the penalties imposed as is held in the case of Landmark Education India- 2014 (35) S.T.R. 537 (Tri.-Mumbai). He produces the copy of such order.

5. Learned departmental representative on the other hand would submit that is appellants own case this bench vide final order no. A/1495/13/CSTB/C-I dated 3.7.2013 has only set aside the penalty imposed under section 78 of the Finance Act 1994. He produces the copy of such order.

6. On perusal of the records and on consideration of the submissions made by both sides, we find that the appellant is only pleading for setting aside the penalty imposed under section 76 and 77 of the Finance Act 1994.

7. It is seen from our final order dated 3.7.2013 that in that case, the very same issue was in dispute i.e. Commercial Training & Coaching Services. We find from the records that in this case also appellant is not contesting the service tax liability and the interest thereof due to retrospective amendment introduced vide Finance Act 2010, in the definition of Commercial Training & Coaching Center, hence the liability to pay service tax and interest is upheld. As regards penalty imposed under section 76 and 77 of the Finance Act 1994, we find that the appeal decided by this bench on 3.7.2013, it was for the period July 2003 to March 2004 and the appellant has discharged the penalties imposed on them in that appeal under Section 76 and 77 of the Finance Act 1994 and did not contest the same. In our considered view, appellant cannot take a different stand as already taken in an identical issue, hence we find that the penalty imposed under Section 76 and 77 are correctly upheld by the impugned order.

8. In view of the forgoing, we find no merits in the appeal filed by the appellant and the same is rejected.

(Pronounced in Court)

(C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial)

akp 1 2 APPEAL No.ST/394/10-Mum