M/S. Nagar Taluka Sahakari Kharedi ... vs Commissioner Of Central Excise, ...

[Arising out of Order-in-Appeal No. AV (237) 218/2012 dated 8/1//2012 passed by the Commissioner (Appeals) of Central Excise & Customs, Aurangabad]

For approval and signature:

Honble Mr Ramesh Nair, Member (Judicial)

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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 : 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? ======================================================= M/s. Nagar Taluka Sahakari Kharedi Vikri Sangh Ltd. : Appellants

VS

Commissioner of Central Excise, Customs & Service Tax, Ahmednagar : Respondent

Appearance

None for the Appellants Shri Das, Dy. Commissioner (A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 17/6/2015 Date of decision: 17/6/2015

ORDER NO.

Per : Ramesh Nair

This appeal is directed against Order-in-Appeal No. AV (237) 218/2012 dated 8/1//2012 passed by the Commissioner (Appeals) of Central Excise & Customs, Aurangabad, wherein Ld. Commissioner upheld the Order-in-Original and rejected the appeal of the appellant.

2. The fact of the case is that appellant M/s. Nagar Taluka Sahakari Kharedi Vikri Sangh Ltd. had given it immovable property on rent and received rent amounting to Rs.51,99,993/- during the period 1/6/2007 to 30/6/2011 on which service tax was worked out to Rs. 4,87,835/-. The activity of renting was covered by the definition of Renting of Immovable Property Service as defined under clause (zzzz) of Section 65(105) of Finance Act, 1994. The appellant failed to obtain service tax registration and to pay applicable service tax. The show cause to this effect was issued proposing demand and the recovery of the service tax amounting to Rs. 4,87,835/- alongwith applicable interest in terms of Section 75 of the Act. It was also proposed to impose penalty under Section 76, 77 and 78 of the Finance Act, 1994. The show cause notice was adjudicated where all the proposals have been confirmed vide adjudication order dated 9/7/2012. Being aggrieved by the said Order-in-Original appellant filed appeal before the Commissioner (Appeals), who upheld the Order-in-Original and rejected the appeal of the appellant. Being aggrieved by the impugned order, appellant filed this appeal.

3. When the matter is called for hearing none appeared on behalf of the appellant, nor any adjournment request was made, therefore I proceed to decide the matter on merit.

4. Shri Das, Dy Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order.

5. We have carefully considered the submissions made by Ld. A.R. and gone through the grounds of appeal.

6. I find that the appellant in their appeal has prayed for waiver of penalties under Section 76,77 and 78 and also dropping of demand of Rs.12,930/- on the ground that the same is confirmed on the tax of Refund of Rs. 1,04,611/- paid to local body in terms of Notification NO. 24/2007-ST issued by service tax department. It is observed that services involved are renting immovable property services and the period involved is 2007-2011. It is also fact that appellant have paid entire service tax alongwith interest on 26/11/2012. I find that under special provisions in the Finance Act, 2012 the immunity has been granted for penalties under Section 80(2) of Finance Act, which reproduced below:-

The new Section 80(2) reads as:

Notwithstanding anything contained in the provisions of section 76 or section 77 or section 78, no penalty shall be imposable for failure to pay service tax payable, as on the 6th day of March, 2012, on the taxable service referred to in sub-clause (zzzz) of clause (105) of section 65, subject to the condition that the amount of service tax along with interest is paid in full within a period of six months from the date on which the Finance Bill, 2012 receives the assent of the President .

From the above Section in respect of renting of immovable property if the tax is due as on 6th day of March, 2012 and if the same has been paid alongwith interest within period of six months from the date on which the Finance Bill, 2012 received the assent of the President, no penalties shall be imposable for failure to pay the service tax.

In the present case, the demand is for the period 2007-2011 and the same was payable on 6th day of March 2012. The liability of service tax in full alongwith interest has been discharged within the six month from the date on which Finance Bill received assent of the President, which was ending on 28/11/2012, the appellant has paid liability on 26/11/2012. In this undisputed facts, appellant has made out a clear case for waiver of penalties in terms of Section 80(2) of the Finance Act, 1994. I therefore invoking Section 80(2) set aside the penalties imposed under Section 76, 77 and 78 of the Finance Act. As regard the contest of the appellant regarding the dropping of demand of Rs. 12,930/-. The appellant has not pressed made this discrepancy either before the adjudicating authority or before the Commissioner (Appeals) and no documentary evidence was submitted before the said lower authorities. Therefore same cannot be verified at this stage therefore demand is upheld. In view of my above discussion, I waive penalties imposed under Section 76, 77 and 78. However demand of service tax along with interest and payment thereof is maintained. The appeal is allowed in the above terms.

(Operative part pronounced in court)

Ramesh Nair Member (Judicial)

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