M/S. Mc Sara Constructions vs Cce, Madurai

(Arising out of Order-in-Appeal No. 155/2011 dated 24.3.2011 passed by the Commissioner of Central Excise (Appeals), Madurai)

M/s. Mc Sara Constructions CCE, Madurai Appellants

Vs.

CCE, Madurai M/s. Mc Sara Constructions Respondents

Appearance

Shri M. Kannan, Advocate, for the Assessee Shri B. Balamurugan, AC (AR) for the Department

CORAM

Honble Shri D.N. Panda, Judicial Member

Date of Hearing / Decision: 25.09.2015

Final Order No. 41284-41285 / 2015

Learned counsel says that there is no deliberate attempt to cause evasion to Revenue. Therefore, appellant successfully got reduction of the service tax from Rs.11,00,477/- to Rs.3,15,317/- and that liability was discharged along with interest. While learned adjudicating authority allowed the concessional penalty limiting that to 25% of the tax demand, learned Commissioner (Appeals) did not extend that.

2. Revenue has also come in appeal against the reduction of penalty on the ground that instead of the penalty to be Rs.2 lakhs under section 78 that ought to have been Rs.3,15,317/-.

3. Revenue supports the adjudication.

4. Appellant has no dispute on tax liability and interest. It is strange that Revenue was not in appeal before learned Commissioner (Appeals) when the concession in penalty was granted by adjudicating authority. The law is well settled that in absence of any appeal or cross-objection by Revenue, the relief granted by the adjudicating authority cannot be denied by an appellate authority in an appeal of assessee. In absence of appeal of Revenue against the concession in penalty before Commissioner (Appeals) that relief cannot be denied to the assessee by a subsequent appeal of Revenue when there was reduction of penalty by Commissioner (Appeals) on no good reason.

5. Law being well settled that the relief granted by the lower authority cannot be denied in absence of appeal or cross-objection by other side, appeal succeeds on its plea as to restricting of the penalty to 25% of the tax demand of Rs.3,15,317/-.

6. The appeal of the assessee is thus allowed to that extent and Revenue appeal is dismissed. (Dictated and pronounced in open court)

(D.N. Panda) Judicial Member

Rex

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