Fie Spherotech vs Commissioner Of Central Excise

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI

COURT No. I

APPEAL No.ST/86446/13

(Arising out of Order-in-Appeal No.P-II/MMD/319/2012 dated 31/12/2012 passed by Commissioner of Central Excise (Appeals), Pune)

For approval and signature:

Honble Mr. P.S. Pruthi, 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 :Yes 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? ========================================

FIE Spherotech Appellant Vs. Commissioner of Central Excise, Respondent Kolhapur

Appearance: None for appellant Shri.Ashok B Kulgod, Asst. Comm. (AR), for respondent

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

Date of Hearing : 22/04/2015 Date of Decision : 22/04/2015

ORDER NO

Per: P.S. Pruthi

1. The appellant is in appeal against Order-in-Appeal No.P-II/MMD/319/2012 dated 31/12/2012 passed by Commissioner of Central Excise (Appeals), Pune, in which he upheld the demands of duty, interest and penalty under Sections 77 & 78 of the Finance Act, 1994.

2. In this case the appellant is engaged in the manufacture of CI castings and also receiving service of transport of goods by road from various transporters. The liability to pay service tax on such services is on the recipient. The service tax for the period January 2005 to December 2006 was paid by the appellant. However, on a visit by the Central Excise Officers on 16/10/2007 it was found that the service tax had not been paid on GTA services for the period January 2007 to September 2007. The due date for the payment of service tax for the period October 2006 to March 2007 was 31/03/2007 and for the period April 2007 to September 2007 was due to be paid on 05/10/2007. However, the appellant neither filed the return in time nor paid the service tax on due date. Thereafter they paid the service tax under TR-6 challan on 26/10/2007. In adjudication, the service tax paid was appropriated against the demand. Interest was demanded for late payment and penalties were imposed under Sections 76, 77 & 78 of the Finance Act. In appeal, the Commissioner (Appeals) set aside the penalty under Section 76. Therefore, apart from the short payment of interest of Rs.8,524/-, the only issue that remains to be decided is whether the penalty is payable under Section 78 or not.

3. The appellants have made a request for a decision on merit.

4. After hearing the learned DR for the Revenue, I find that the appellants paid service tax for the year 2005-2006. However, admittedly there was a delay in payment of service tax for the period January 2007 to September 2007. This was pointed out to the appellant during the visit of the officers to their unit on 16/10/2007 and the service tax paid within ten days of being pointed out. As the detection was made from the records maintained by the appellant who had been paying service tax regularly in the past, I find that no mens rea proved is for willful suppression of facts to avoid payment of service tax. Therefore, I set aside the penalty under Section 78. However, the interest of Rs.8,524/- and penalty under Section 77 for late filing of service tax return is upheld.

5. The appeal is disposed of in above terms.

(Dictated in Court)

(P.S. Pruthi) Member (Technical)

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