Commissioner Of Customs, Central ... vs V.K. Shankar Reddy

[Arising out of Order-in-Appeal No. 23-2010 dated 29/09/2010 passed by Commissioner of Central Excise & Customs (Appeals) Guntur]

For approval and signature:

HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

Commissioner of Customs, Central Excise and Service Tax GUNTUR P.B.NO. 331...C.R.BUILDING, KANNAVARI THOTA, GUNTUR, - 520004 ANDHRA PRADESH Appellant(s)

Versus

V.K. SHANKAR REDDY SRI.SAI NIKITA ENCLAVE, D.NO.23-28-63, FLAT 303, KOMMUVARI STREET, SATYANARAYANA PURAM, VIJAYAWADA, KRISHNA DISTRICT, AP. Respondent(s)

Appearance:

Mr. N. Jagadish, A.R. For the Appellant

Mr. A.S.R.S.S. Siva Prasad, C.A. For the Respondent

Date of Hearing: 07/10/2015

Date of Decision: 07/10/2015

CORAM:

HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER

Final Order No. 22016 / 2015

Per : ARCHANA WADHWA

Being aggrieved with that part of the impugned order of Commissioner (Appeals) vide which he has set aside the penalty imposed upon the respondents under Sections 76, 77 & 78 of the Finance Act 1994, Revenue has filed the present appeal.

2. It is seen that the respondent had provided site formation services to their customers without payment of service tax. The said fact came into notice of the Revenue by making certain investigations. The respondent immediately deposited the duty and also submitted that since such imposition of service tax was a new law, they were under bonafide belief that the activities undertaken by them would not attract service tax.

2. Commissioner (Appeals) in his impugned order has taken into consideration various decisions of the Higher Authorities including the Honble Supreme Courts decision in the case of Tamilnadu Housing Board Vs CCE [1994 ELT 9 (S.C.)] wherein it was observed that intention to evade payment of duty is not mere failure to pay duty and it must be something more, i.e. that assessee must be aware that duty was leviable and he must deliberately avoid payment of duty. Accordingly, by taking into consideration the fact that the assessee has paid service tax with interest as well as late fee without any contest, he observed that the appellant succeeded in explaining/accepting that there is no suppression of facts/information with intention to evade payment of service tax. Accordingly by invoking the provisions of Section 80 of the Finance Act providing immunity from imposition of penalty, he set aside the penalties. Revenue in their memo of appeal, have again reiterated the same very grounds that the appellant did not pay the service tax for a period of two years and did not take any registration. There is no evidence to show that such inaction on the part of the assessee was on account of any malafide. The provisions of Section 80 of the Finance Act 1994 are invokable in such a situation only. Admittedly levy of service tax was a new levy and there could be some reasons for the assessee to believe that the activities undertaken by them were not taxable. I find no infirmity in the views adopted by Commissioner (Appeals). Accordingly, the Revenues appeal is rejected.

(Order pronounced in open court)

ARCHANA WADHWA JUDICIAL MEMBER

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