M/S. Viraj Roadlines vs Commissioner Of Central Excise, Raigad

[Arising out of Order-in-Appeal No. US/774/RGD/2012 dtd. 12/11/2012 passed by the Commissioner of Central Excise (Appeals)-II, Mumbai]

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. Viraj Roadlines : Appellants

VS

Commissioner of Central Excise, Raigad : Respondent

Appearance

Shri Bhushan Jain, C.A. for the Appellants Shri B. Kumar, Iyer, Superintendent (A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 17/6/2015 Date of decision: 17/6/2015

ORDER NO.

Per : Ramesh Nair

This appeal is directed against Order-in- Appeal No. US/774/RGD/2012 dtd. 12/11/2012 passed by the Commissioner of Central Excise (Appeals)-II, Mumbai, wherein the Ld. Commissioner upheld the penalty imposed under Section 76 and 77 of the Finance Act and rejected appeal of the appellant.

2. The fact of the case is that the appellant is engaged in providing services of rent a cab. On the scrutiny of the records by the departmental officer, it was found that the appellant during the period 2006-07 till 2010-11 have collected service tax but not deposited to the government exchequer. The show cause notice was issued proposing demand of service tax amounting to Rs. 72,185/-, interest under Section 75 and penalty under Section 76,77 and 78. In the adjudication, the adjudicating authority has confirmed demand and imposed penalty of Rs. 5,000/- under Section 77 and equal amount of penalty under Section 78 and also imposed penalty under Section 76. Aggrieved by the said order, the appellant filed appeal before the Commissioner (Appeals) for the waiver of penalty under Section 76, 77 and 78. The Ld. Commissioner (Appeals) rejected the appeal vide the impugned order therefore appellant is before me.

3. Shri. Bhushan Jain, Ld. C.A. appearing on behalf of the appellant submits that appellant is small time service provider, illiterate. He was fully co operated with the investigating officer. He also submits that appellant has discharged entire service tax liability alongwith interest before the adjudication of the case therefore he pleaded that penalty imposed and upheld by the lower authority may kingly be waived.

4. On the other hand, Shri. B. Kumar Iyer, Ld. Superintendent (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that submission of the Ld. Counsel is not correct for the reason that appellant was registered with service tax authority and knowingly they have collected service tax and not paid to the government, therefore his ignorance is not proved. Had the departmental officer not pointed out they could have evaded the payment of service tax.

5. I have carefully considered the submissions made by both sides.

6. The service tax liability has not been contested by the appellant and they have paid service tax alongwith interest before adjudication order was passed. It is fact on record that appellant had collected the service tax, therefore it cannot be said that they were unaware of the service tax liability and payment thereof, therefore in my considered view appellant could not show any reasonable cause by which penalty can be waived invoking Section 80 of the Finance Act, 1994. I therefore upheld the impugned order and dismiss the appeal.

(Dictated in court)

Ramesh Nair Member (Judicial)

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