M/S. Vasudha Facility Solution P. Ltd vs C.C.E. & S.T.-Bhopal

[Arising out of Order-in-Original No. BPL-EXCUS-000-APPP-157-13-14 dated 13.12.2013 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Bhopal].

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see 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 of the Order?

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

M/s. Vasudha Facility Solution P. Ltd. .Appellants

Vs.

C.C.E. & S.T.-Bhopal .Respondent

Appearance:

Shri S.K. Pahwa, Advocate for the Appellants

Shri R.K. Grover, DR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 27.04.2015

FINAL ORDER NO. 51583/2015-ST(SM)

Per Ashok Jindal:

The appellant is in appeal against the impugned order imposing penalty under section 76 of the Finance Act 1994.

2. The facts of the case are that appellant is providing security services and during the period April 2008-March 2011 the appellant did not pay service tax on their activity and not filed their returns. When the appellant was asked by the department the appellant immediately filed service tax returns and paid service tax along with interest. Thereafter, the show cause notice was issued for appropriation of the amount paid by the appellant and to impose penalty under section 76, 77 and 78 of the Finance Act 1994. The Adjudicating Authority held that there was no suppression of facts. Therefore, penalty under various provisions of the Act was set aside by giving benefit under section 80 of the Finance Act 1994. On appeal by the Revenue before the Ld. Commissioner (A) the penalty under section 76 only of the Finance Act 1994 was imposed on the appellant. Aggrieved from the said order appellant is before me.

3. The Ld. Counsel for the appellant submits that as there is no suppression held by both the lower authorities the show cause notice was not required to be issued to the appellant as per section 73 (3) of the Finance Act 1994. Therefore, penalty under section 76 is to be set aside.

4. On the other hand, Ld. AR submits that as it is the case of suppression and they have not filed any service tax returns in time therefore penalty under section 76 is rightly imposed. Penalty under section 76 can be imposed if there is a delay in payment. To support his contention he relied on the decision in the case of Dixon Electronics Vs. CCE Chandigarh-2008 (10) STR 390 (Tri-Del).

5. Heard the parties. Considered the submissions and perused the records.

6. On perusal of the records I find that both the lower authorities held that there was no suppression on the part of appellant. Therefore, provision of the Section 73 (3) of the Finance Act 1994 is applicable to the facts of this case wherein it has been specified that if the amount of service tax along with interest has been paid by the assessee on pointing out by the department and there is no case of suppression in that case show cause notice is not required to be issued. Therefore, I hold that as both the lower authorities has held that there was no suppression of facts therefore show cause notice was not required to be issued to the appellant as per provisions of section 73 (3) of the Finance Act 1994. In these circumstances, penalty under section 76 is not imposable on the appellant. Therefore, case laws relied upon by the Ld. AR have no relevance to the facts of this case.

7. In these circumstances, impugned order is set aside. Appeal is allowed with consequential relief if any.

(Dictated and pronounced in the open court.)

(Ashok Jindal) Member (Judicial)

Bhanu

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E/52229/2014-EX(SM)