M/S. Suresh Caterers vs Commissioner, Central Excise & ...

[Arising out of Order-in-Original No. 44/ST/COMMR/2010 dtd. 23/9/2010 passed by the Commissioner, Central Excise, Customs & Service Tax, 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. Suresh Caterers : Appellants

VS

Commissioner, Central Excise & Customs, Aurangabad : Respondent

Appearance

None for the Appellants Shri B. Kumar Iyer, Superintendent for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 18/6/2015 Date of decision: 18/6/2015

ORDER NO.

Per : Ramesh Nair

This appeal is directed against Order-in- Original No. 44/ST/COMMR/2010 dtd. 23/9/2010 passed in revision proceedings by the Commissioner, Central Excise, Customs & Service Tax, Aurangabad, wherein the Ld. Commissioner imposed penalty under Section 76.

2. The fact of the case is that the appellant, M/s. Suresh Caterers, registered with service tax engaged in providing outdoor catering service to M/s. Endurance Technology Pvt. Ltd Unit II. The appellant have failed to obtain service tax registration and to pay service tax on amount received during the year 2006-07. The show cause notice dated 15/4/2008 was issued proposing to demand of service tax on outdoor catering services amounting to Rs.37,468/- alongwith interest and it was also proposed to impose penalties under Section 76, 77 and 78 of the Finance Act, 1994. The show cause notice was adjudicated vide O-I-O No. 13/ST/AC/2008 dated 12/11/2008 wherein the Asstt. Commissioner has confirmed the demand of service tax amounting to Rs.37,468/- interest of Rs.6,006/- under the provisions of Section 75 of the Finance Act, 1994. Penalty of Rs. 37,468/- under Section 78 were also imposed. The said order was revised under Section 84 of the Finance Act, 1984 and accordingly, show cause notice was issued to the appellant. It was adjudicated vide impugned order wherein penalty under Section 76 was imposed. The appellant have paid entire service tax demand penalty under Section 77 and 25% penalty imposed under Section 78. Aggrieved by the said impugned order the appellant is before me.

3. When the matter was called for hearing none appeared on behalf of the appellant. It is also observed from the records that matter was listed for hearing en-number of times, however it appears that appellant is not interested in pursuing their appeal, therefore I proceed to decide the appeal on merit.

4. Shri. B. Kumar Iyer, Ld. Superintendent (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that penalties under Section 76 and 78 both can be imposed simultaneously, therefore original authority erred in not imposing the penalty under Section 76 of the Finance Act, 1994.

5. I have carefully considered the submission made by Ld. A.R. and perused the record.

6. I find that appellant is a small time out door caterer. He has deposited entire service tax alongwith interest and penalties under Section 77 and 25% penalty under Section 78. As per the ground of appeals, the submissions of the appellant is that due to ignorance of law he could not deposit the service tax at the relevant time, however on pointing out non payment, without contesting liability, not only paid service tax alongwith interest but also paid penalty amount under Section 77 and 78 of the Finance Act. Taking into consideration the conduct of the appellant and overall facts and circumstances, I find that the appellant has already been penalized under section 77 and also under Section 78. The appellant has paid service tax interest and penalty in both Section, he deserves for the waiver of penalty under Section 76. I, therefore waive penalty under Section 76 by invoking Section 80 and set aside the impugned order. The appeal is allowed.

(Dictated in court)

Ramesh Nair Member (Judicial)

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