M/S S.K. Banerjee Builders vs Commissioner Of Central Excise

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI

COURT No. I APPEAL No.ST/305/10-Mum (Arising out of Order-in-Original No.06/2010/C dated 27/01/2010 passed by The Commissioner of Central Excise & Customs, Nagpur.)

For approval and signature: Honble Mr.M.V. Ravindran, Member (Judicial) Honble Mr. Raju, Member (Technical)

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? ========================================

M/s S.K. Banerjee Builders Appellant Vs. Commissioner of Central Excise, Respondent Nagpur Appearance: None for appellant Shri. R.K.Das, DC (AR) for respondent CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. Raju, Member (Technical)

Date of Hearing : 09/07/2015 Date of Decision : 09/07/2015

ORDER NO Per: M.V. Ravindran

1. This appeal is directed against order in original no. 06/2010/C dated 27/01/2010.

2. None appeared for the appellant nor there is any request for adjournment.

3. Since the issue involved is in narrow compass, we take up the appeal for disposal in the absence of any representation from the appellant.

4. Heard the learned departmental representative and perused the records.

5. On perusal of records, we find that the issue involved in this case is regarding the service tax liability on the appellant under the category of Commercial or Industrial Construction services and Construction of Residential Premises.

6. We find from the records that the appellant has not denied the liability to service tax and shri. S.K. Banerjee partner of the appellant in his statement dated- 15.11.2008, explained that the services rendered by them are taxable and agreed to pay the service tax liability. There is nothing on record to indicate that this statement has been retracted by the said shri. S.K. Banerjee. We find that the adjudicating authority has correctly confirmed the demands under the category of commercial or industrial construction services and construction of residential premises, as the activity undertaken by the appellant is in respect of construction of building for a cotton mill and residential complex for Nagpur improvement trust. We find from the grounds of appeal was filed, appellant is not disputing the taxability of their services but he is only contending that the simultaneous penalties cannot be imposed under Section 76 and 78 of the act. We find that show cause notice is issued on the appellant on 21.10.2009. During the period when provisions of Section 78 of the Finance Act 1994 had mandated for imposition of penalty either under Section 76 or Section 78 of the Finance Act 1994. We find that the adjudicating authority has imposed penalties on the appellant under section76 and 78 of the Finance Act 1994. In our considered view penalty imposed under section 76 by the adjudicating authority is beyond the mandate of section 78 of the Finance Act 1994. Accordingly, we set aside the penalty imposed on the appellant under section 76 of the finance act 1994.

7. The appeal is disposed of by upholding the demand of tax liability, interest thereof and penalties under section 77 and 78 of the Finance Act 1994 but we set aside the penalties imposed under section 76 of the Finance Act 1994.

(Dictated in Court)

(Raju)

Member (Technical) (M.V. Ravindran) Member (Judicial)

akp

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