M/S Sethi Tools Pvt Ltd vs Commissioners Of Central Excise

[ Arising out of OIA-PJ/115/VDR-II/2013-14 dtd 23.5.2013 Passed by Commissioners of Central Excise, Customs and Service Tax-VADODARA-II ]

M/s Sethi Tools Pvt Ltd - Appellant (s) Vs.

Commissioners of Central Excise, - Respondent(s)

Customs and Service Tax-VADODARA-II

Represented by For Assessee : Shri S R Dixit (Learned Advocate) For Revenue : Shri J Nair ( Authorised Representative)

For approval and signature :

Mr. H.K. Thakur, Hon.ble Member (Technical)

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

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

Yes

CORAM :

Mr. H.K. Thakur, Hon.ble Member (Technical)

Date of Hearing / Decision : 20/3/2015

ORDER No. A/10301 / 2015 dtd 20/3/2015

Per : Mr. H K Thakur;

This appeal has been filed by the appellant against OIA-PJ/115/VDR-II/2013-14 dt 23.5.2013. The issue involved is regarding imposition of penalties upon the appellant under Sections 76, 77 and 78 of the Finance Act 1994 in view of the introduction of Section 80(2) of the Finance Act 1994.

2. Shri S R Dixit (Advocate) appearing on behalf of the appellant argued that the period involved in these proceedings is April 2009 to December 2009 and the demand were paid before the introduction of Sec 80(2) of the Finance Act 1994. It was his case that benefit of Section 80(2) can not be denied for paying the taxes before introduction of Sec. 80(2) of the Revenue Act 1994. He relies upon Camex Reality Pvt Ltd vs CST, Ahmedabad  2014(36)STR.444 (Ti. Ahmd).

3. Shri J Nair (AR) appearing on behalf of the Revenue argued that since taxes were paid before the introduction of Sec 80(2), of the Finance Act 1994 therefore, first appellate authority has correctly decided the case against the appellant.

4. Heard both sides and perused the case records. From the facts narrated in Para 2 and 3 of the OIA dated 23.5.2013 it is observed that there was a dispute with respect to chargeability of service tax on Renting of Immovable Property and certain retrospective amendments were carried out only in 2010. Section 80(2) reproduced below was added to Section 80 of the Finance act 1994 with effect from 6.3.2012 :

Not withstanding 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 alongwith 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.

4.1 As per the above provision an assessee who paid the service tax on Renting of immovable Property before introduction 9 Sec 80(2) cannot be put at a disadvantage vis-`-vis a tax payer who delayed and paid tax on the same service after 6.3.2012. Further, there was a dispute on the levy of service tax on Renting of Immovable Property and the same was brought to the notice of the department by the appellant through a letter dt 12.6.2008. Accordingly, it has to be held that appellant had a reasonable cause for non-payment of tax during the relevant period. For such an eventuality waiver from penalties was always available under Sec 80 of the Finance Act 1994 even before the introduction of Sec 80(2).

5. In view of the above observations, appeal filed by the appellant is allowed by setting aside the OIA dtd 23.5.2013 passed by the first appellate authority.

(Dictated and pronounced in the Court)

(H.K. Thakur) Member (Technical)

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