M/S. Piramal Healthcare Ltd vs Commissioner Of Central Excise

[Arising out of Order-In-Appeal No. IND/CEX/000/APP/31/2014 dated 27/1/2014 passed by Commissioner of Customs & Central Excise Indore]

For approval and signature:

Honble Mr Ashok Jindal, 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 Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

M/s. Piramal Healthcare Ltd. Appellants

Vs.

Commissioner of Central Excise Respondent

& ST, Indore

Appearance:

Shri Manoj Chouhan, CA for the Appellants

Shri V P Batra, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 03.2.2015

FINAL ORDER NO. A/ 50386/2015- (SM)

Per Ashok Jindal :

The appellant is in appeal against the impugned order wherein penalty under section 76 has been imposed to the tune of Rs.1526/- and under section 77 to the tune of Rs. 3,12,200/- wherein demand of service tax is only Rs. 1,526/-.

2. The facts of the case are that the appellant is engaged in the activity of manufacturing bulk drugs and obtaining registration under the category of goods transport agency service. During this period appellants have took membership of PDA located outside. If that activity, the appellants was required to pay service tax under reverse charge mechanism. A the appellant failed to pay service tax under reverse charge mechanism therefore proceedings were initiated against the appellant to demand service tax along with interest and to impose penalty under various provisions of Finance Act, 1994 at the time of adjudication. Demand of Service Tax of Rs.1,526/- was confirmed along with interest, penalty under section 76 of Rs.1,526/- was confirmed and a penalty of Rs.3,12,200/- was also confirmed under section 77 of the Act. To buy peace, appellant did not contested the payment of service tax along with interest. But the penalty imposed is self-exorbitant, the appellant is contesting the penalty before me.

3. Learned Counsel for the appellant submits that appellant is required to pay service tax under reverse charge mechanism as the provision of payment of Service Tax on the service was not known to the appellant,. appellant could not pay service tax in time under reverse charge mechanism. If at all, they have paid service tax in time, same was available to them as Cenvat credit. Therefore, it is a situation of revenue neutrality but the appellant is not contesting the service tax liability. In this situation, penalty under section 76 and section 77 are not imposable. He further submits that penalty under section 76 is excessively high and same has been imposed for non filing of ST 3 return. The provision of section 77 of the Act does not provide penalty for non filing of ST 3 return. Therefore,. penalties on the appellant be set aside.

4. On the other hand, learned AR supported the impugned order and submitted that as the appellant did not pay the service tax in time therefore, penalty under section 76 is to be confirmed and for penalty under section 77 he submits that as the appellant did not take registration under this category, therefore, penalty is rightly been confirmed.

5. Heard the parties. Considered the submissions.

6. In this case, the appellant was required to pay service tax under reverse charge mechanism. After that they have paid the service tax in time, same was available to them as Cenvat credit. By not paying the service tax in time, appellant has already suffered interest and have not taken credit of the service tax paid. Therefore it is a situation of revenue neutrality. Penalty under section 76 is dropped. However, I consider that imposition of penalty under section 77 shows the non application of mind by the authorities below. As under section 77 penalty cannot be imposed for non-filing of SRT 3 return. In these circumstances, penalty under section 77 is also set aside.

7. With these terms, appeal is allowed by setting aside the impugned order qua imposition of penalty on the appellant.

(dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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