Cce, Ludhiana vs M/S. J.D.Sales Corporation
- CitationAppeal No. ST/995/2009-Cus (DB)
Ratio decidendi
The rule this decision rests on
The Tribunal's reasoning rests on a single line: the question whether penalties under sections 76, 77 and 78 of the Finance Act, 1994 may be imposed simultaneously is governed by the Supreme Court's decision in BCCI v. CST, Mumbai, which the Tribunal treats as the controlling authority, and the determination of that question must be made on the facts of each case in light of that decision; accordingly, where the Commissioner (Appeals) has not considered the matter in that light, the matter is to be remanded for fresh consideration on the actual facts and the governing judgment.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of OIA No.182/CE/LDH/2009 dt.7.9.2009 passed by CCE (Appeals), Chandigarh)
CCE, Ludhiana Appellants
Vs.
M/s. J.D.Sales Corporation Respondent
Appearance:
Appellant: Shri Yash Pal Shrama, AR
Respondent: None
HonbleMr.P.K.Das, Member (Judicial)
HonbleMr.P.S.Pruthi, 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 their Lordships wish to see the fair copy of the order?
seen
4. Whether order is to be circulated to the Department Authorities?
Yes
Coram:Honble Mr.P.K.Das, Member (Judicial)
HonbleMr.P.S.Pruthi, Member(Technical)
Date of Hearing/decision: 21.01.2015
FINAL ORDER NO.50746/2015
PER: P.S.PRUTHI
The Revenue is in appeal against the Order-in-Appeal in which the Commissioner (Appeals) has set aside the penalty under section 76 of Finance Act, 1994.
2. The facts of the case are that the respondent was providing business auxiliary service to M/s. Oswal Woollen Mills by way of procuring orders for supply on their behalf. In the process, they were receiving commission as commission agent. It was held that service tax is exempted on service of commission agent under Notification No.13/2003-ST dated 20.6.2003. However, this exemption was withdrawn vide Notification No.8/2004-ST dated 9.7.2004 and the service tax was payable for the period 9.7.2004 to 31.12.2006. The respondent deposited the whole of service tax ability alongwith interest and also deposited 25% of service tax amount as penalty under section 78 of the Finance Act. The Commissioner (Appeals) held the respondent to be eligible for waiver of penalty in excess of 25% of demand of service tax in terms of section 78 and set aside penalty under section 76 imposed by the adjudicating authority.
3. The Revenue is in appeal for imposition of penalty under section 76 of Finance Act.
4. Heard both sides and considered the submissions.
5. We find that the issue of simultaneous imposition of penalty under section 76, 77 and 78 of Finance Act, 1994 has been decided in the various judgements of High Courts as well as Supreme Court in the case of BCCI vs. CST, Mumbai-I-2015-TIOL-04-SC.ST.
6. We find that issue has to be considered keeping in view the facts involved in each case. In view of the recent judgement of the apex court in the case of BCCI (Supra), we are of the view that the matter is to be remanded for fresh consideration by the Commissioner (Appeals) based on the actual facts and the judgement on the issue.
7. Accordingly, the appeal is allowed by way of remand.
(Pronounced in the court)
(P.S.PRUTHI) (P.K.DAS)
MEMBER (TECHNICAL) MEMBER(JUDICIAL)
mk
1
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