Karunyam Hydro Tech Services P. Ltd vs Commissioner Of Central Excise

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT No. I

Appeal No. ST/86136/15

(Arising out of Order-in-Appeal No. Goa-EXCUS-000-APP-46-2014-15 dated 09.02.2015 passed by Commissioner of Central Excise, Customs & Service Tax (Appeals), Goa)

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial)

================================================

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?

================================================

Karunyam Hydro Tech Services P. Ltd. Appellant Vs. Commissioner of Central Excise, Respondent Goa

Appearance: Shri R.K. Tomar, Advocate for appellant Shri A.K.Goswami, Addl. Commissioner (AR) for respondent

CORAM: Honble Mr. M.V. Ravindran, Member (Judicial)

Date of Hearing: 28.10.2015 Date of Decision: 28.10.2015

ORDER NO

Per : M.V. Ravindran

This appeal is directed against Order-in-Appeal No. Goa-EXCUS-000-APP-46-2014-15 dated 09.02.2015

2. Heard both sides and perused the records.

3. Filtering out the unnecessary details, the issue that falls for consideration is whether the appellants prayer for setting aside the penalties imposed under Section 77 and 78 of the Finance Act, 1994 needs to be set aside or otherwise by invoking the provisions of Section 80 of the Finance Act, 1994.

4. During the period in question i.e. April 2010 to March 2012, the appellant herein had charged service tax on the invoices for the services rendered by them to their clients under the category of Port Services, Management, Maintenance and Repair Services, though recorded the transactions in their books of accounts, but have not deposited the said amount with the Govt. After issuing show-cause notice, the appellant discharged the service tax liability with interest thereof and sought leniency of setting aside the penalties under Section 80 of the Finance Act, 1994. The adjudicating authority confirmed the demand and appropriated the amount paid as also the interest and imposed penalty under Section 78 of the Finance Act, 1994 extended the option of paying 25% of penalty as per the provisions of Section 78 of the Finance Act, 1994. Appellant did not pay the amount of 25% and contested the matter before the first appellate authority. The first appellate authority upheld the order-in-original in toto.

5. I find that the appellant has not made out any case for invoking the provisions of Section 80 of the Finance Act, 1994 as the only reason given by them is there was severe financial difficulty and they could not deposit the service tax to the Govt. In my considered view, this cannot be a reason for seeking invocation of provision of Section 80 of the Finance Act, 1994.

6. Learned Counsel was arguing that they had recorded all the transactions in the records and the provisions of Section 78 is not applicable in this case as there was no intention to evade duty. On specific query from the Bench as to whether they filed returns during the period, it was informed that they have not filed returns but subsequently filed the same.

7. In my considered view, having not filed the returns, the department was unaware that the appellant has not deposited the tax amounts collected. Since the arguments put forth by the learned Counsel are not convincing, I uphold the impugned order as correct, legal and does not suffer from any infirmity.

8. Impugned order is upheld and the appeal is rejected.

(Dictated in Court)

(M.V. Ravindran) Member (Judicial)

nsk

??

??

??

??

1 4

Appeal No. ST/86136/15