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K.S. Saravanakumar vs Commissioner Of Customs, Central ...

Customs Excise and Service Tax Appellate Tribunal9 October 2015

Ratio decidendi

The rule this decision rests on

Where the levy of service tax on renting of immovable property was in doubt, and the Finance Act, 2010 later granted immunity from prosecution for such non-payment, the penalty proceeding, being quasi-criminal in nature, may be considered for exoneration from penalty under section 78 of the Finance Act, 1994, so that a person who has discharged the tax liability with interest is not penalised under that section. Where there is default in payment of tax and concurrent liability for a separate penalty exists, the penalty under section 77 of the Finance Act, 1994 is sustained notwithstanding the grant of relief from penalty under section 78.

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, CHENNAIST/41437/2013

[Arising out of Order-in-Appeal No.CMD-CEX-000-APP-045-13, dated 20.02.2013 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Coimbatore]

K.S. SARAVANAKUMAR APPELLANT

Versus

COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX, COIMBATORE RESPONDENT

Appearance:

For the Appellant Shri N. Marimuthu, Auth. Rep.

For the Respondent Shri R. Subramaniyan, AC (AR)

CORAM:

Honble Shri D.N. Panda, Judicial Member

Date of hearing/decision 09-10-2015

FINAL ORDER NO. 41378 / 2015

The representative of the appellant appearing in person says that when the levy of service tax on the Renting of Immovable Property was in question and that ultimately reached the Honble High Court of Delhi in the case of Home Solutions Retail Ltd. Vs Union of India reported in 2010 (19) S.T.R.3 (Del.), this appellant should not face with the penalty, who has already discharged the tax liability with interest.

2. Revenue submits that penalty is justified when there is default.

3. When there was amendment of the law to grant immunity from persecution in terms of the Finance Act, 2010, the penalty proceeding being quasi-criminal in nature, the appellant also deserves consideration for exoneration from levy of penalty. Accordingly, the levy of penalty under section 78 is waived. However, the penalty under section 77 shall be maintained since there is concurrent liability. Consequently, appeal is partly allowed, waiving penalty under section 78 and confirming tax and interest as well as penalty under section 77 of the Act. (Dictated and pronounced in open court)

(D.N. PANDA) JUDICIAL MEMBER

ksr 12-10-2015

DRAFT Remarks

I II III

Date of dictation 08.10.2015

Draft Order - Date of typing 10.10.2015

Fair Order Typing 12.10.2015

Date of number and date of dispatch 13.10.2015

2 ST/41437/2013

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