M/S Gurucharan Motors vs Commissioner Of Central Excise & S.Tax, ...

Arising out of O/A No.352-ST/LKO/2012 dated 30.07.2012 passed by Commissioner (Appeals) of Customs, Central Excise & S.Tax, Lucknow.

For approval and signature:

HONBLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL)

1. Whether Press Reporters may be allowed to see 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? :

3. Whether His Lordship wishes to see the fair copy of the Order? :

4. Whether Order is to be circulated to the Departmental Authorities? :

M/s Gurucharan Motors. APPELLANT(S) VERSUS

Commissioner of Central Excise & S.Tax, Kanpur RESPONDENT (S)

APPEARANCE

Shri Rupesh Kumar, Adv. for the Appellant (s) Shri Dipak Kumar Deb, A.C. (D.R.) for the Department

CORAM:

HONBLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL)

DATE OF HEARING & PRONOUNCEMENT : 01. 10. 2015

ORDER NO.__________________________

Per Mr. Anil Choudhary :

The Appellant, M/s Gurucharan Motors, is in Appeal against Order-in-Appeal No. 352-ST/LKO/2012 dated 30.07.2012 passed by Commissioner (Appeals) of Customs, Central Excise & S.Tax, Lucknow.

2. Brief facts are that the Appellant is an authorized service station and registered with the Service Tax Department for discharging service tax w.e.f.31.05.2004. A show-cause notice (SCN) was issued to them alleging therein that the Appellant was not paying service tax nor filed any half yearly returns. A summon was sent to them on 16.03.2010. Shri Arvind Singh, Partner of the Appellant Company, appeared before the Superintendent (Prev.) of Central Excise on 25.03.2010 and the statement was recorded. It was noticed by the Revenue that the Appellant paid the service tax upto 30.09.2007. Thereafter, Bank refused to take deposit of tax in absence of PAN based registration number. Further, he agreed to obtain PAN based registration number and deposited the tax due within a week. The records show that the Appellant had deposited due taxes on 30.03.2010. It further appeared that the Appellants have not deposited interest on delayed payment. Accordingly, they were required to show-cause vide notice dated 19.05.2011 as to why the amount of Rs.12,634/- be not demanded and appropriated from the predeposit already made along with interest amount of Rs.21,551/-, the calculation of which is given in the SCN and penalty was proposed under Section 77,78 & 70 (1) of the Finance Act, 1994. The Appellant contested the SCN. But the same was adjudicated and confirmed the demand and adjusted and the ld.Commissioner (Appeals) passed the order in detail as proposed and penalty of Rs.12,634/- was imposed under Section 77 and 78 of the Finance Act, 1994. Further, late fee of Rs.20,000/- was imposed under Section 7-C of the Service Tax Rules, 1994 read with Section 70 of the Act for not filing half yearly returns for the period April, 2004 to March, 2011. Being aggrieved, the Appellant preferred an Appeal before the ld.Commissioner (Appeals), who has pleased to reject the Appeal upholding the findings of the Order-in-Original dt. 30.12.2011, by observing that there is a default on the part of the Appellant for not taking PAN based registration number and also observed that the payment of tax rightly deposited by the Appellant.

3. Being aggrieved, the Appellant is before this Tribunal. Hence, the present Appeal. The ld.Commissioner (Appeals) observed that they have regularly paid the taxes since the date of Registration in 2004-05 and have been paid till September, 2007, when the Bank refused to accept the said payment of tax when assessee went to deposit Rs.12,634/- for the half yearly period from April, 2007 to September, 2007. Accordingly, the assessee not being properly advised and the Partner of the Appellant being not highly educated, could not understand their legal obligation i.e. to apply for PAN based registration number and thereafter, pay the tax accordingly and filed returns along with copy of the challan. It is further urged that there is no malafide or deliberate default on the part of the Appellant, which is evident from the language of the SCN. It is further urge that at the first instance in the statement recorded on 25.03.2010, the Partner of the Appellant stated that the circumstances of default, which do not want anything as contumacious conduct or deliberate default on the provisions of law. It is further pointed out that the amount of interest demanded of Rs.21,551/- has been deposited during the appellate stage on 06.08.2013. Accordingly, the ld.Advocate for the Appellant, prays for waiver of penalty imposed.

4. The ld. D.R. for the Revenue, relies on the impugned order and prays for dismissal of Appeal.

5. Having considering the rival contentions, I am satisfied that no case of deliberate default or contumacious conduct, is made out against the Appellant. Further, I take notice of the fact that the Appellant had paid the amount of tax within a week on being so pointed out by the Revenue much before issuance of SCN, which was issued on 19.05.2011 months after the amount was paid. Accordingly, I set aside the penalty under Sections 77,78 & 70 (1) read with Rule 7 (C) of Service Tax Rules, 1994.

6. Appeal is allowed as indicated above.

(Dictated and pronounced in the open Court)

Sd/ (ANIL CHOUDHARY) MEMBER (JUDICIAL) mm

2 S.T. Appeal No.3350/12