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K.Pasupathy vs Commissioner Of Central Excise

Customs Excise and Service Tax Appellate Tribunal9 January 2015

Ratio decidendi

The rule this decision rests on

Where the demand of service tax and interest has been set aside because the service was retrospectively exempted by a notification issued under Section 97 of the Finance Act, no penalty under Rule 77 can be imposed for the same period, since no tax liability exists on which a penalty for non-payment or contravention can rest.

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

Judgment

As delivered

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNALSOUTH ZONAL BENCH AT CHENNAIAppeal No.ST/COD/42354/2014 &ST/42060/2014

[Arising out of Order-in-Appeal No.146/2013 (M-III) ST dated 22.11.2013 passed by the Commissioner of Central Excise (Appeals), Chennai]

K.Pasupathy Appellant

Versus

Commissioner of Central Excise, Chennai-III Respondent

Appearance:

Shri S.Gowri Shankar, Advocate For the Appellant Shri B. Balamurugan, AC (AR) For the Respondent

CORAM:

Honble Shri R. Periasami, Technical Member

Date of hearing : 09-01-2015 Date of decision : 09-01-2015

FINAL ORDER No.40037/2015

There was a delay of 25 days in filing the appeal before Tribunal.

2. Ld. Advocate for the appellant submits that, inadvertently, the appeal was filed before the Commissioner (Appeals) office on 5.2.2014 which is well within the time. Commissioner (Appeals) office returned the file with appeal papers to the appellant vide their letter dt. 10.2.2014. Immediately thereafter, they have filed appeal before Tribunal. He submits that appellant being a contractor is not well versed with the office procedures.

3. Considering the above, the delay of 25 days is condoned. COD application is allowed.

4. Since the issue lies in a narrow compass of imposition of penalty of Rs.5000/- under Rule 77, appeal is taken up for hearing.

5. Ld. Advocate submits that appellant is providing services related to maintenance or repair service of roads for the period 16.6.2005 to 30.9.2008. Appellate authority has already allowed their appeal in so far as the demand of service tax and interest, in view of retrospective amendment under Section 97 vide Notification 24/09 dt. 27.7.2009. However, Commissioner (Appeals) upheld the penalty imposed under Section 77. He submits that since there is no liability of tax, question of imposing penalty does not arise.

6. Ld. AR for Revenue reiterated the findings of the impugned order.

7. I have carefully considered the submissions and perused the records.

8. By virtue of amendment to Section 97 vide above Notification No.24/2009, repair or maintenance services were retrospectively exempted from levy of tax from 16.6.2005 to July 2009. The lower appellate authority has rightly set aside the demand and interest. In view of that, I do not find any merit in the imposition of penalty on the appellant. Accordingly, the appeal is allowed.

(Dictated and pronounced in open court)

(R. PERIASAMI) TECHNICAL MEMBER

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