M/S. Gannon Dunkerly & Co. Ltd vs Cst, New Delhi

(Arising out of OIO No.07/JM/2009, No.05/JM/2009, No.04/JM/2009 dated 30.7.2009 and No.01/JM/2009 dated 29.7.2009 passed by the CCE (Adjudication), New Delhi)

Date of Hearing/Order: 09.07.2015

Honble Mr.R.K.Singh, Member (Technical)

Honble Ms.Sulekha Beevi C.S., Member (Judicial)

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 would be released under Rule 27 of the 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 Department Authorities? yes

M/s. Gannon Dunkerly & Co. Ltd. Appellant

Vs.

CST, New Delhi Respondent

Present for the Appellant: None

Present for the Respondent: Shri Rajeev Tandon, AR

Coram: Honble Mr.R.K.Singh, Member (Technical)

Honble Ms.Sulekha Beevi C.S., Member (Judicial)

FINAL ORDER NO.52407-52410/2015

PER: R.K.SINGH

Appeals have been filed against imposition of penalty.

2. The facts of the case are as under:-

2.1 The appellant provided commercial or industrial construction services and availed the benefit of Notification No.15/2004-ST dated 10.9.2004 and paid service tax on 33% of the gross value received. The primary adjudicating authority held that as the appellant had not included the value of material supplied free of cost by the service recipient, it was not entitled to the benefit of Notification No. 15/2004-ST dated 10.9.2004 and as a consequence confirmed the demands of service tax alongwith interest and penalty ( under section 78 of Finance Act, 1994). The primary adjudicating authority duly appropriated the amounts of impugned demands and interest deposited by the appellant. The appellant has contended in its appeal that while it had paid the service tax and interest, it was contesting imposition of penalty on the ground it was under bonafide belief that the gross amount charged did not include the amount of free supplies given by the service recipient for claiming abatement under Notification No.15/2004-ST.

3. While no one appeared on behalf of the appellant, learned DR stated that in view of the CESTATs judgement of Bhayana Builders Pvt.Ltd. vs. CST, Delhi-2013 (32) ELT 49 (Tri.-LB) he had nothing to say against the appellants contention.

4. We have considered the matter on merits. It has been held by the CESTAT in case of Bhayana Builders (Supra) that value of free supplies need not be included for claiming abatement under Notification No.15/2004-ST. In the wake of the said judgement, even the impugned demands would not be sustainable and consequently the question of penalty would be preposterous. Accordingly, notwithstanding the absence of the appellant, we are of the view that the penalties are not sustainable and therefore allow the appeals.

(dictated and Pronounced in the open court)

(SULEKHA BEEVI C.S.) (R.K.SINGH)

MEMBER (JUDICIAL) MEMBER (TECHNICAL)

mk

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