M/S. Arkkay Construction vs Cce, Trichy

(Arising out of Order-in-Appeal No.21/2010 dated 17.02.2010, passed by the Commissioner of Central Excise (Appeals), Chennai).

For approval and signature

Honble Shri R. PERIASAMI, Technical Member

M/s. Arkkay Construction : Appellant

Vs.

CCE, Trichy : Respondent

Appearance

None for the appellant Shri M. Rammohan Rao, DC (AR), for the respondent

CORAM

Honble Shri R. PERIASAMI, Technical Member

Date of Hearing/Decision : 20.02.2015

FINAL ORDER No. 40173 / 2015

This appeal arises out of Order-in-Appeal passed by the Commissioner (Appeals). None appeared on behalf of the appellant nor there is any adjournment request. Notice was issued to the appellant. The matter has been adjourned on several occasions viz., 12.3.14, 3.11.14, 9.1.15 and 20.2.15. The facts of the case relates to waiver of penalty imposed under Section 78 of the Finance Act, where the appellant had paid the service tax before issue of show cause notice.

2. The Ld. AR submits that in this case the service tax amount was collected by the appellant from the service receiver and not remitted to the department, the lower authority has confirmed demand of Rs. 5,31,531/- and imposed equal amount of penalty under Section 78 of the Finance Act, 1944. The Commissioner (Appeals) in the impugned order waived the penalties under Section 76 and 77 of the Act and upheld the penalty under Section 78. He relied upon the decision of the Tribunal in the case of Global Facility Management Services Pvt. Ltd. Vs. CST, Chennai  2013 (31) STR 585 (Tri.-Chen.).

3. On perusal of the records I find that the short issue involved in this case is waiver of penalty under Section 78 of the Act, as the lower appellate authority has already waived the penalties under 76 & 77. As seen from the facts of the case, the appellant has already collected service tax amount of Rs. 5,31,531/- during 2006 for the service from April to December, 2006, and failed to remit the same to the Government. Only on detection by the department through the service receiver they paid the amount on 20.06.2007. The Commissioner (Appeals) has dealt the issue in detail at para 4.3 of the impugned order. As seen from the records, suppression of facts with intention to evade payment of duty by the appellant has been established beyond doubt, the adjudicating authority has rightly invoked extended period and imposed equal penalty under Section 78 of the Act. Further, I find that the appellant has paid the interest and also 25% of the penalty imposed under Section 78 of the Act within 30 days of receipt of the adjudication order. Therefore, I do not find any merit in the appellants contention for waiver of penalty under Section 78 of the Act. In the case of Global Facility Management Services Pvt. Ltd. (supra), the Tribunal upheld the penalty imposed under Section 78 of the Act.

4. In view of the above, I do not find any infirmity in the impugned order. Accordingly, the appeal is rejected and the impugned order is upheld.

(Order pronounced and dictated in the open Court)

(R. PERIASAMI) TECHNICAL MEMBER

BB

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