Cce, Ludhiana vs Swaran Singh, Contractor

(Arising out of OIANo.034/ST/Appl/Jal/2009 & No.031/ST/Appl/Jal/2009 both dt.19.3.2009 passed by CCE(Appeals), Jalandhar)

CCE, Ludhiana Appellants

Vs.

Swaran Singh, Contractor Respondent

Pradeep Kumar, Contractor

Appearance:

Present for the Appellant: Shri V.P.Batra, Authorised Representative Present for the Respondent: Shri Sudhir Malhotra &

Shri Vikrant Karckari, Advocates

Honble Mr.P.K.Das, Member (Judicial)

Honble Mr.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)

Honble Mr.P.S.Pruthi, Member(Technical)

Date of Hearing/decision: 20.01.2015

FINAL ORDER NO.51076-51077/2015

PER: P.K.DAS

Common issue is involved in these appeals and therefore both are taken up together for disposal.

2. Both the Respondents were engaged as contractor for cleaning of the factory premises of various companies. The adjudicating authority confirmed the demand of service tax alongwith interest and also imposed penalty under section 76 and section 78 of the Finance Act, 1994 separately. The Commissioner (Appeals) set aside the penalty imposed under section 76 following the decisions of the Tribunal as no separate penalty is warranted under Section 76 in view of the penalty impolsed under Section 78 of the Act..

3. Learned Authorized Representative for the Revenue submits that Honble Supreme Court in the case of Board of Control for Cricket in India vs. CST, Mumbai-I-2015-TIOL-04-CS-ST dismissed the appeal filed by the assessee. Honble Supreme Court upheld the decision of the Tribunal in the case of Board of Control for Cricket in India vs. CST, Mumbai-I-2014-TIOL-1774-CESTAT-MUM. In that case, it has been held that both the penalties can be imposed under sections 76 and 78 of the Finance Act for the period prior to 10.5.2008.

4. We find that the Commissioner (Appeals) following the decision of the Tribunal set aside the penalty under section 76 on the ground that the penalty under both the sections cannot be sustained without going into the facts of the case. In view of the decision of Supreme Court in the case of Board of Control for Cricket in India (supra), it is appropriate that the Commissioner (Appeals) should have examined the facts of the case in respect of imposition of penalty under section 76 of the said Act.

5. Accordingly, we remand the matter to the Commissioner (Appeals) to decide afresh regarding the imposition of penalty under section 76 of the said Act on the basis of facts and law of the case.

6. All the appeals filed by the Revenue are allowed by way of remand.

(Pronounced in the court)

(P.S.PRUTHI) (P.K.DAS)

MEMBER (TECHNICAL) MEMBER(JUDICIAL)

mk

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