Commissioner Of Service Tax vs M/S Hazira Marine Engg. & Const. Mgmt. P. ...
- CitationAPPEAL NO. ST/293/09 and ST/292/09 Mum
Ratio decidendi
The rule this decision rests on
Where the demand of service tax confirmed by the adjudicating authority has been set aside by this Tribunal in an earlier decision between the same parties arising from the same orders-in-original, no penalty under Section 76 of the Finance Act can survive in the connected appeal, since the penalty is dependent on a subsisting tax liability and nothing remains to be enforced once the demand is set aside. A penalty not imposed by the adjudicating authority, and not invoked in the show-cause notice, cannot be sustained in appeal on the Revenue's behalf where the appeal memoranda raise no ground challenging its non-imposition; the Revenue is confined to the grounds it has taken.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. II
APPEAL NO. ST/293/09 and ST/292/09 Mum
Arising out of orders-in-original No.20/BR-16/ST/Th-I/2009 dated 14.09.2009 and 23/BR-19/ST/Th-I/2009 dated 17.09.2009 passed by the Commissioner of Central Excise, Thane I.
For approval and signature:
Shri. M.V. Ravindran, Member (Judicial) Shri. P.R. Chandrasekharan, Member (Technical)
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?
Commissioner of Service Tax, Mumbai : Appellant
Versus
M/s Hazira Marine Engg. & Const. Mgmt. P. Ltd.
Respondent
Appearance
Shri K.S. Mishra, Addl. Commissioner (A.R.) for appellant Ms Ashwini Tijare, C.A. (Representative) For Respondent
CORAM:
Shri. M.V. Ravindran, Member (Judicial) Shri. P.R. Chandrasekharan, Member (Technical)
Date of Hearing : 05.02.2015 Date of Decision : 05.02.2015
ORDER NO.
Per : M.V. Ravindran These two appeals are filed by Revenue against the impugned orders of the adjudicating authority. Since the issue involved in the appeals is same, they are being disposed of by a common order.
2. When the matter was called, the representative from the office of the respondent filed an application for adjournment of the matter. On perusal of the records we find that the appeals of Revenue are in a narrow compass hence we decline request for adjournment and take up the appeals for disposal.
3. Heard the learned D.R and perused the records.
4. It is seen from the records that Revenue is aggrieved by the impugned order on the ground that the adjudicating authority has incorrectly imposed penalties on the respondent under Section 76. Revenues grievance is that the adjudicating authority should have imposed penalty as per the provisions of Section 76 of the Finance Act which is Rs.200/- per day or 2% of the tax per month which is higher. Learned D.R. was also tried to convince us that the adjudicating authority has not imposed penalties on improper availment of CENVAT Credit by the respondent.
4.1 We find that against the very same orders-in-original, respondent was before this Tribunal in Appeals No.ST/306 & 307/2009-Mum. Those appeals were disposed of by this Tribunal vide Order No.A/480 & 481/14/CSTB/C-I dated 05.03.2014 by setting aside the demand confirmed by the adjudicating authority. We also set aside the penalties imposed on the respondent and upheld the demands in respect of illegible CENVAT Credit.
4.2 We find that these two cases do not have any merits inasmuch as, when the demand of service tax itself is set aside by the Tribunal vide order dated 5.3.2014, nothing survives in these appeals. Accordingly, Revenues contention that the adjudicating authority should have imposed penalties under Section 76 as per the provisions has no merits and is rejected.
4.3 Another argument made by the learned D.R. for non-imposition of penalty on ineligible CENVAT Credit availed by the respondent. We find that the adjudicating authority had not imposed any penalty on the respondent. Against such non-imposition of penalty under Cenvat Credit Rules, 2004, there are no grounds of appeal in the appeal memoranda.
5.3 We also find that the show-cause notice to the respondent, is not invoking any provisions for imposition of penalties on the assessee for improper availment of CENVAT Credit. Adjudicating authority was correct in not imposing any penalty as there being no invocation of any provisions of imposition of penalties for wrong availment of CENVAT Credit. In our considered view when revenue has not challenged the non-imposition of penalties under relevant provisions; the argument put forth by the learned DR for imposition of penalty under Cenvat Credit Rules, 2004 are unsustainable and are rejected out-right.
6. Accordingly in view of foregoing the appeals are rejected.
(Dictated in open Court)
(P.R. Chandrasekharan) Member (Technical)
(M.V. Ravindran) Member (Judicial) nsk
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