M/S Aditya Builders vs Commissioner Of
- CitationAppeal No. : ST/181/2008
Ratio decidendi
The rule this decision rests on
The tribunal's reasoning rests on the following principles, stated in the order the court takes them. Where the assessee does not contest the demand of tax and interest, having already deposited the full amount, the tribunal need not examine the merits of the demand or the case law relied upon in support of the assessee's challenge to it. Where the tax and interest have been paid before the issuance of the show cause notice, the imposition of penalty may be waived in the exercise of discretion, having regard to the amount involved, the period of default, the full and prior payment of tax with interest, and the absence of any collection of the amount from customers; the tribunal reads this as consistent with the Central Board's clarification on imposition of penalty in such cases.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[ Arising out of OIA-151/2008/AHD-III/CE/KCG/COMMR-A dtd 14.11.2008 passed by Commissioner of Central Excise-AHMEDABAD-III ]
M/s Aditya Builders - Appellant(s)
Vs
Commissioner of Central Excise-AHMEDABAD-III - Respondent (s)
Appeal No. : ST/5/2009
[ Arising out of OIA-151/2008-AHD-III-CE/KCG/COMMR-A- dtd 3.11.2008 passed by Commissioner of Central Excise-AHMEDABAD-III ]
Commissioner of Central Excise-AHMEDABAD-III - Appellant(s)
Vs
M/s Aditya Builders - Respondent (s)
Represented by :
For Assessee : Shri Vipul Khandhar, Chartered Accountant For Revenue : Shri J Nair, Authorised Representative
For approval and signature :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Honble Member (Technical)
1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No 3 Whether their Lordships wish to see the fair copy of the Order?
Seen 4 Whether Order is to be circulated to the Departmental authorities?
Yes
CORAM :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Honble Member (Technical)
Date of Hearing / Decision : 6/10/2015
ORDER No. A/11535-11536/2015 dtd 6/10/2015
Per : Mr.P.K. Das,
Heard both sides and perused the records.
2. The Adjudicating authority confirmed the demand of Service Tax of Rs 2,76,597/- alongwith interest and imposed penalties under various provisions of the Finance Act, 1994, for the period of 10.9.2004 to 30.3.2007 under the category of Construction Services. By the impugned order, the Commissioner (Appeals) allowed the option to pay penalty 25% of the tax under Section 78 of the Finance Act, 1944. Hence, the assessee and the Revenue both filed these appeals.
3. Learned Advocate on behalf of the assessee submits that the assessee had provided the Construction Services as per contract/ agreement with M/s Oil and Natural Gas Commission Ltd (ONGC) and the activities are like Civil Work of Foundation for Drilling Rig Platform, Road etc. He submits that the taxable value included the material and the labour cost, which would be about 75% of the total amount and the demand of tax, cannot be sustained. He strongly relied upon the decision of High Court in the case of M/s Bajaj Travels Ltd vs. CST 2012.25.STR.41 (Del.) and the decision of Honble Supreme Court in the case of CCE&C vs. Larsen & Toubro Ltd 2015.39.STR.913 (SC). He fairly submits that the assessee already deposited the entire amount of tax alongwith interest before issuance of Show Cause Notice.
4. It is noticed that the assessee is not contesting the demand of tax alongwith interest as they have already deposited and therefore, there is no need to go into merits of the case and the case laws cited by the Learned Counsel. The main contention of the Learned Advocate is that the penalty is liable to be set aside. CBEC by letter No.137/167/2006-CX-4 dtd 3.10.2007 clarified regarding imposition of penalty, when the Service Tax was paid before issuance of Show Cause Notice. After considering the amount involved and the period of the case for 2004 to 2007 and the appellant already paid the entire amount of tax with interest and the statement of the Learned Counsel that the assessee had not collected any amount from the customers, therefore, it is a fit case for waiver of penalty.
5. Accordingly, we waive the imposition of penalty. The demand of tax alongwith interest is upheld and the penalties are set aside. The Appeal filed by the assessee is disposed of in the above terms. The appeal filed by the Revenue is rejected.
(Dictated and pronounced in the Court)
(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial)
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