M/S Utkarsh Associates vs Cce &St, Lucknow

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 26 of 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?

Service Tax Appeal No. 52197 of 2015

(Arising out of order in appeal No. 102-ST/APPL-LKO/2015 dated 19.03.2015 passed by Commissioner (Appeals), Customs, Central Excise & Service Tax, Lucknow).

M/s Utkarsh Associates Appellant

Vs.

CCE &ST, Lucknow Respondent

Appearance:

Shri Ashish Vaish, C.A. for the Revenue

Ms. Suchitra Sharma, Comm. (AR) for the Respondent

Coram: Honble Mr. Justice G. Raghuram, President

Final Order No. 52670 / 2015

Per: Justice G. Raghuram:

Heard the ld. Consultant for the appellant and ld. AR for the respondent  Revenue.

2. Assessee is in appeal against the order of the ld. Commissioner (Appeals), Central Excise & Service Tax, Lucknow dated 19.03.2015 whereby appeal No.157-ST/2013 dated 12.07.2013 preferred by Revenue was allowed, the primary adjudication order dated 31.03.2013 modified and penalty of Rs.1,77,156/- under Section 78 of the Finance Act, 1994 was confirmed.

3. Show cause notice was issued to the appellant on 26.07.2012 proposing levy of service tax for having provided Manpower Recruitment or Supply Agency service. After a due process order-in-original dated 31.03.2013 was passed by the Assistant Commissioner, Central Excise & Service Tax Division, Faizabad confirming service tax demand of Rs. 1,77,156/- apart from interest under Section 75 and penalty of Rs. 5,000/- under Section 77 for violation of Section 70 read with Rule 7 of the Service Tax Rules. This primary order did not impose penalty under Section 78 of the Act. Aggrieved, the assessee preferred an appeal and so did Revenue aggrieved by non imposition of penalty under Section 78.

4. The assessee/appellants appeal was allowed by the Commissioner (Appeals), Allahabad on 29.08.2013. The ld. lower appellate Authority for the reasons recorded found that the appellant did not provide Manpower Recruitment or Supply Agency service. Therefore the appeal was allowed in toto. Without noticing the appellate order dated 29.08.2013, the Commissioner (Appeals), Central Excise and Service tax, Lucknow passed the impugned order dated 19.03.2015 confirming the demand of penalty under Section 78 of the Act.

5. In the chronology of facts set out above, it is clear that once the appellants appeal was allowed by the Commissioner (Appeals) on 29.08.2013 on the conclusion that the appellant has not provided the alleged taxable service, there was no liability to either tax or consequent penalty, on the appellant. In the circumstances, confirmation of penalty under Section 78 by the Commissioner (Appeals) by the impugned order is unsustainable.

6. On the aforesaid analyses the appeal succeeds; the impugned order dated 19.03.2015 passed by the ld. Commissioner (Appeals), Customs, Central Excise & Service Tax, Lucknow is quashed. No costs.

(Justice G. Raghuram)

President

Pant