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Cce, Salem vs M/S. Mohan Engineering Works

Customs Excise and Service Tax Appellate Tribunal30 September 2015

Ratio decidendi

The rule this decision rests on

The appeal period under section 84 of the Finance Act, 1994 runs from the date of the adjudicating authority's order, and where the Revenue obtains an order from the Reviewing Authority within three months of that order and then files its appeal in accordance with sub-sections (2) and (3) of section 84, the appeal is within limitation. Revenue's appeal is not to be dismissed for the reason of being time-barred where the Reviewing Authority's order and the subsequent appeal conform to sub-sections (2) and (3) of section 84 of the Finance Act, 1994, as laid down by the Supreme Court in CCE, Delhi-III v. Kap Cones. Imposition of penalty under section 77, or enhancement of penalty under section 78 to the extent of the service tax liability, is not warranted where the adjudicating authority has given elaborate reasons showing no questionable conduct on the part of the assessee; in such circumstances the Tribunal will not interfere with the concessional penalty granted.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE CUSTOMS, EXCISE & SERVICE TAXAPPELLATE TRIBUNALSOUTH ZONAL BENCH, CHENNAIAppeal No. ST/41393/2014

(Arising out of Order-in-Appeal No.57/2014-ST dated 7.2.2014 passed by the Commissioner of Central Excise (Appeals), Salem)

CCE, Salem Appellant

Vs.

M/s. Mohan Engineering Works Respondent

Appearance

Shri L. Paneerselvam, AC (AR) for the Appellant Smt. T. Mary, Representative of the Respondent

CORAM

Honble Shri D.N. Panda, Judicial Member

Date of Hearing / Decision: 30.09.2015

Final Order No. 41309 / 2015

Revenue has come in appeal with the precise submission that Commissioner (Appeals) should not have dismissed the appeal of Revenue holding that its appeal was belatedly filed beyond the limitation prescribed by section 84 of the Finance Act, 1994.

2. The submission of Revenue is acceptable for the reason that the date on which the adjudicating authority has passed order, within three months thereof Revenue has obtained order of Reviewing Authority and come in appeal in accordance with sanction of law under sub-section (2) and (3) of section 84 of the Finance Act, 1994. Therefore, following the law laid down by Apex Court in the case of CCE, Delhi  III Vs. M/s. Kap Cones  2015-TIOL-149-SC-CX, Revenue succeeds on limitation.

3. On merit, Smt. T. Mary, Accountant submits that service tax was paid on transport of goods service availed. Learned adjudicating authority passed a very elaborate order levying service tax amount of Rs.27,368/- which was also discharged by the respondent so also interest of Rs.14,038/- paid thereon. When penalty of Rs.27,368/- was imposed the adjudication authority granted concessional penalty to the extent of 25% of the service tax demand. That was also discharged by the respondent.

4. Revenues only grievance is that concessional penalty should not have been granted and penalty under section 77 should have been imposed.

5. Revenue has merit when the limitation prescribed for filing appeal is looked into and succeeds thereon. But, for the elaborate reasoning stated by the adjudicating authority, finding no questionable conduct of the respondent, it is not desirable to agree with Revenue for imposition of penalty under section 77 nor even to enhance penalty under section 78 to the extent of service tax liability. So also on the pecuniary ground prescribed by Board to appeal, Revenue fails. Accordingly, Revenue appeal is dismissed.

(Dictated and pronounced in open court)

(D.N. Panda) Judicial Member Rex

2

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