M/S Ghanshyam P. Choudhari vs Commissioner Of Central Excise
- CitationAPPEAL No. ST/354/10
Ratio decidendi
The rule this decision rests on
Where the assessee has accepted before the adjudicating authority that it rendered the taxable service, and that finding is not contested before the first appellate authority, the assessee cannot later contend that the show-cause notice failed to identify the services rendered; the demand of service tax and interest is sustained on that basis. Where the assessee is from a rural area and its services consist of construction of a residential complex, a bona fide belief that no service tax liability arose is a ground on which the benefit of Section 80 of the Finance Act, 1994 may be invoked, so that the penalties imposed under the Act are set aside while the confirmed demand of tax and interest is upheld.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT No. I
APPEAL No. ST/354/10
(Arising out of Order-in-Appeal No. AGS(59)40/2010 dated 07.04.2010 passed by Commissioner of Central Excise & Customs (Appeals), Aurangabad)
For approval and signature:
Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. Raju, Member (Technical)
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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?
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M/s Ghanshyam P. Choudhari Appellant Vs. Commissioner of Central Excise, Respondent Aurangabad
Appearance: Shri R.S. Indani, Advocate for appellant Shri S.R. Nair, EO (AR), for respondent
CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. Raju, Member (Technical)
Date of Hearing: 16.07.15 Date of Decision: 16.07.15
ORDER NO Per : M.V. Ravindran
This appeal is directed against Order-in-Appeal No. AGS(59)40/2010 dated 07.04.2010
2. Heard both sides and perused the records.
3. The issue involved in this case is regarding service tax liability on the appellant under the category of Construction Service of Residential Complex for the period 2008-2009. Show-cause notice was confirmed by the adjudicating authority along with the interest thereof and penalties were also imposed. On appeal, first appellate authority also concurred all the views of the adjudicating authority but reduced the penalty under Section 76 based upon the calculation of the said Section.
4. Learned Counsel submits that the services rendered by them are not specifically stated in the show-cause notice and there is no allegation as to which services are rendered by them during the material period. It is also his submission that the show-cause notice relied upon the Boards Circular dated 29.01.2009, while the demand is for the period 2007-08 and 2008-09 and there cannot be invocation of extended period.
5. Learned D.R appearing for Revenue reiterated the findings of the lower authorities.
6. On perusal of the records we find that the appellant before the adjudicating authority has accepted the fact that he is rendering the service under the category of construction of residential complex. On a specific query from the Bench the learned Counsel was unable to point out that whether this particular acceptance cwas ontested before the first appellate authority. We were informed by the learned Counsel that the appellant has already discharged the service tax liability. In our considered view the appellant having accepted before the adjudicating authority that they are rending the service and the said findings are not contested before first appellate authority, we are unable to accept the contentions of the learned Counsel that show-cause notice does not indicate as to which type of services were rendered by the appellant therefore we upheld the demand of service tax liability and interest thereof. Appellant is directed to pay interest on the said amount within four weeks from the receipt of certified copy of this order.
6.1. As regards the penalty, we find that the appellant being from rural area of the State would have entertained a bonafide belief as to that they are not required to discharge any service tax liability as the services rendered by them is towards construction of residential complex. In our view that this is a fit case to invoke the provisions of Section 80 of the Finance Act, 1994 and we do so. By invoking the provisions of Section 80, we set aside all the penalties imposed by the adjudicating authority and upheld by the first appellate authority while upholding the confirmation of demand of service tax liability and the interest thereof.
8. Appeal is disposed of as indicated herein above.
(Dictated in Court)
(Raju) Member (Technical) (M.V. Ravindran) Member (Judicial)
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