M/S. Tiruchirapalli District vs Commissioner Of Central Excise ...
- CitationAppeal No.130/2013, dated 07.11.2013 passed by the Commissioner of Customs & Central Exc
Ratio decidendi
The rule this decision rests on
The Tribunal's reasoning rests on the following points, in the order taken. Where the Adjudicating authority has found that the assessee acted on a bona fide legal position, and the levy under challenge was itself the subject of a constitutional challenge pending before the apex court, the existence of reasonable cause is established and no penalty for non-payment or non-compliance is leviable in the absence of any finding of deliberate intention to evade tax. An officer holding office as ex-officio President of a society is not to be presumed to act contrary to law, and the conduct of the society's officers in cooperating with the department, producing records and paying tax with interest after the show-cause notice may be taken into account in deciding whether penalty should be imposed. An order of the Commissioner (Appeals) that sets aside the Adjudicating authority's exoneration from penalty without recording any reason for doing so cannot stand, and the Adjudication order is to be restored.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.130/2013, dated 07.11.2013 passed by the Commissioner of Customs & Central Excise (Appeals), Trichirapalli]
M/s. TIRUCHIRAPALLI DISTRICT WELFARE FUND COMMITTEE APPELLANT
Versus
COMMISSIONER OF CENTRAL EXCISE (SERVICE TAX), TRICHIRAPALLI RESPONDENT
Appearance:
For the Appellant Shri J. Shankararaman, Adv.
For the Respondent Shri L. Paneerselvan, AC (AR)
CORAM:
Honble Shri D.N. Panda, Judicial Member
Date of hearing/decision 22-09-2015
FINAL ORDER NO. 41268 / 2015
The submission of the learned counsel is that the appellant M/s. Tiruchirapalli District Welfare Fund Committee (TDWFC, in short) has been set up for the welfare of the specified category of people of the society without any profit motive. The Collector of the district is the ex-officio President of that society. The learned Adjudicating authority found co-operation of the ex-office president to reduce the litigation. He has also recorded that not only relevant documents were produced by the presidents office but also paid the entire amount and interest after issue of show-cause notice and they did not agitate the matter further.
2. Considering all the above aspects and also levy of the service tax on Mandap Keeper was the subject matter of dispute, the appellant was exonerated from levy of penalty under Section 76, 77, & 78 of the Finance Act, 1994. It was held in the Adjudication order that in so far as the levy of penalty against the appellant on Mandap Keeper Service is concerned that would cause unreasonable hardship to the appellant. There was no levy of penalty on the Renting of Immovable Property Service by any of the authorities below. He prays on the aforesaid premise that the order of Adjudicating authority should be restored reversing the order of Commissioner (Appeals).
3. Revenue supports the order of the appellate Commissioner.
4. There is no quarrel that constitutionality of the levy of service tax of Mandap Keeper went up to apex court in the case of Tamil Nadu Kalyana Mandapam Associations Vs Union of India reported in 2004 (167) E.L.T. 3 (S.C.). Therefore, difficulties of the appellant are appreciable. When the Collector was the ex-officio President of the Society, it is not expected from a public servant that he shall act contrary to law. Therefore, learned Adjudicating authority has considered existence of reasonable cause in the present case to exonerate the appellant from the levy of penalty. The manner Adjudicating authority has recorded his finding in para 8 of his order that does not warrant penalty. But that failed to get appreciation by the learned Commissioner (Appeals) for no reason recorded by him. In absence of any finding that there was deliberate intention to cause evasion, no penalty should be levied.
5. In view of the above, Adjudication order is restored setting aside the appellate order. Consequential, relief if any, shall flow in accordance with law. (Dictated and pronounced in open court)
(D.N. PANDA) JUDICIAL MEMBER
ksr 28-09-2015
DRAFT Remarks
I II III
Date of dictation 22.09.2015
Draft Order - Date of typing 25.09.2015
Fair Order Typing 25.09.2015
Date of number and date of dispatch 28/09/2015
3 ST/40273/2014
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