Rohit Enterprises vs Commissioner Of Central Excise, Raigad
- CitationAPPEAL NO.ST/86259/13
Ratio decidendi
The rule this decision rests on
The collection of service tax from customers, without deposit to the Government, establishes knowledge of the service tax liability on the part of the assessee, and an assessee who has knowingly collected service tax cannot claim ignorance of that liability as a reasonable cause for waiver of penalty. Accordingly, where reasonable cause is sought to be shown for the waiver of penalty under Section 80 of the Finance Act, 1994, the mere payment of the tax with interest before adjudication does not by itself furnish such cause where the assessee had collected the tax and so was aware of its liability.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in- Appeal No. US/784/RGD/2012 dtd. 16/11/2012 passed by the Commissioner of Central Excise(Appeals), Mumbai-III]
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? =======================================================
Rohit Enterprises : Appellants
VS
Commissioner of Central Excise, Raigad : Respondent
Appearance
Shri. Bhushan Jani, C.A. for the Appellants Shri. B. Kumar Iyer, Superintendents(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/784/RGD/2012 dtd. 16/11/2012 passed by the Commissioner of Central Excise(Appeals), Mumbai-III, wherein Ld. Commissioner(Appeals) upheld the order-in-original dated 17/2/2012.
2. The fact of the case is that the appellant is engaged in providing services of Manpower Recruitment Agency to various customers. on the scrutiny of the records by the departmental officer, it was found that the appellant during the period April 2006 to quarter ending September, 20101 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. 2,19,174/- 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 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 register with service tax authority and knowingly they have collected service tax and not paid to the government therefore his ignorance is not proved. Since it is not simple case of non payment of service tax, appellant knowingly collected service tax and not paid to the government. If the departmental officer not pointed out they could have evade the payment of service tax.
5. I have carefully considered the submissions made by both sides.
6. The service tax liability has not contested by the appellant ahs they have paid service tax alongwith interest before adjudication order has passed. It is fact on record that appellant have collected the service tax therefore it could not be said that they were unaware of the service tax liability and payment thereof therefore in my considered view appellant could not showed any reasonable cause by which penalty can be waived invoking Section 80 of the Finance Act, 1994. I therefore upheld the impugned order and dismissed the appeal.
(Operative order pronounced in court)
Ramesh Nair Member (Judicial)
sk
4 ST/86259/13
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